Against politeness

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Photo by Zach D. Roberts for Nation of Change.

I have been made aware of my European identity early, and often. I was born in France, walked my first steps in Ireland, survived my growing pains in Northern Ireland, was educated in Germany, entered adulthood in Switzerland. Every one of those places is determined and defined by war, either present or past, the scars evident for a naked eye to see. Belgium, the Netherlands, Italy, Spain, the Balkans, Austria, Poland, all those bright blue lakes of my childhood and the snow-tipped cold mountain ranges have carried ghosts, whispers and whimpers of the deported, the exterminated, the shellshocked, the wounded of two world wars, at the very least. When a 20 year old student from the University of Nevada called Peter Cvjenatovic says he attended the “Unite the Right” rally in Charlottesville, VA this weekend because the “European culture” means terrorizing the local population with torches and swastikas, brown shirts and black boots is his right, my stomach churned; I blinked at the photo of his comb-over, his facial traits distorted by fanaticism as he screamed “Blood and Soil” on American ground, and the image of a young Otto Van Wächter came to mind.

It’s a nightmare, a nightmare from which we are told not to wake up; it would be an “alternative” reality, a legitimate product of economic disenfranchisement, a “fringe” not present or represented in the current Trump administration, a “rise” contrary to the decades-spanning files of the FBI’s counter extremism task force. It is none of those things, and this piece aims at explaining two things: the issue of free speech absolutism in times of violent politics, and the necessity to call to action without concession.

Free speech absolutism in the age of Trump

 One of the glaring differences in constitutional rights between the US and European member-states – at range, for the purposes of this argument, states party to the ECHR – is the interpretation of the right to free speech, in freedom of expression, opinion, and information. Contained in the First Amendment to the Constitution in the US and Article 10 of the ECHR, the vast difference is of a historical nature, and can vary from state to state in Europe. When it comes to ban on political parties, memorabilia, symbols, or speech, the United States applies a blanket to free speech with a narrow hate speech caveat. In the case of France, a debate regularly arises on the criminality of denying the existence of the Shoah; in Germany, Nazi memorabilia and even performing the Hitler salute in public are banned. Those, to the outside eye, seem necessary given the specific political context inherent to those two countries. In the United States, it appears that events taking place during the 2016 electoral campaign and more recently in Charlottesville, VA have raised the issue of a narrowing, culling, and roughing up the edges of absolutism.

It started when the American Civil Liberties Union (ACLU) represented the leaders of the “Unite The Right” rally in Charlottesville, after the mayor refused them a permit to march. And march they did: the night before the rally itself, the crowd descended on the University of Virginia (UVA) campus in Charlottesville with tiki torches, singing and chanting slogans while marching in pants and shirts, at night, startling the local population with imagery much too familiar to the South and eerily cognizant of its effect on the western world at large. Many felt the ACLU, an organization crucial to the respect of civil rights in the country and generally affiliated with the organized political left, had let them down. The ACLU had been fundraising since the January transition on a platform of opposing the Trump administration at every turn. In that, they delivered: they took the refugee ban to court; they protected journalists targeted by the president’s desire to control the narrative; they were front and center against efforts to repeal the Affordable Care Act. Representing a hate-filled, extremist movement’s right to protest was perceived as a betrayal. Politically, it may be. But the ACLU is a legal organization based on the equal and fair application of constitutional rights; they are not to blame, absolutism is.

There are plenty of arguments in favor of absolutism. They will all highlight that limits to free speech and freedom of the press would yield to state discretion, to judicial bias, to political suppression. They will misquote Voltaire and discern from the old English law that civil rights are not here to be restricted, and that civility will do part with the belief that all positions are equal. They will argue that it’s necessary for expression to take place so rebuttal can also be present and public, and that pushing extremist views further into darkness legitimizes their claim to oppression. In this specific example, they will say that the history specific to mid-20th century Central Europe and French occupation are not the same as the legacy of the Civil War in the United States. Meanwhile, statues of confederate leaders are tumbled down all across the South, and monuments are being used as meeting points for white supremacists. It is very possible to then argue that the legacy of the Civil War has in fact not been dealt with; that the criminal justice system in the United States continues to disproportionality punish black and ethnic minorities; that police violence is unabated and unrestricted; that affirmative action and voting rights are under attack. Is this a reason to curtail free speech? Is extending hate speech territory a violation of free speech? Should the ACLU not accept First Amendment complaints from white supremacist groups?

Legally, the ACLU is being consistent. This is the interpretation of the First Amendment as upheld by the Supreme Court. The aforementioned defense of absolutism makes legitimate points that have been demonstrated as correct: there is a long-standing trail of political bias in freedom of expression. One recent element comes to mind, and that is a much cited court case against former presidential candidate Marine Le Pen being booted off court after filing a defamation claim, the judge outlining in his decision that what is true can not be defamatory in nature: it is therefore legal to refer to Marine Le Pen as a fascist in the course of political debate. This did not prove that hate speech laws in France criminalizing historically verified facts or the ban on neo-nazi parties in Germany are a violation of a fundamental right. Speech is not, as much as one would like it to be, a fundamental right. It is not cited as an absolute because its very nature can pose a threat. What we consider when curtailing free speech is the imminence and reality of the threat said speech poses, and in that states do in fact exercise quite large discretion in determination and definition. Political positions are threatening if they dissent or attack the powers that be; religious beliefs can be seen as isolating and discriminatory. If we do consider human rights to be universal in both nature and scope, we must define them by what they are not. If we are to believe civil rights should be accessed by all, limit them to what they do not tolerate. If political rights are to be exercised safely and in the interest of the collective, they cannot be extended to beliefs that in nature are threatening and lethal. When it comes to the ghosts of slavery and Nazism, ghosts that are very much palpable and cyclically return to haunt the West, there is no debate. Refusing to tolerate such positions is not a question of specific party membership, or political affiliation. Refusing racial supremacy goes far beyond a flag, a border, or a constitution. It is committing to human rights. We should, and must, draw a line.

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Photo by Zach D. Roberts for Nation of Change.

Polarizing attitudes and the Free Ride Theory

 A rose may be a rose by any other name, but an old professor of mine coined the following concept as the Free Ride Theory, and it applies. The dominant narrative, in both glossed-over history reenactments or modern cinematography is that most French people were in the Resistance, the Vichy supporters were passive opportunists, the vote to grant Marshal Pétain full powers all but ignored. This was not the case. A small portion of the population was, in fact, supporting the Vichy regime; held anti-Semitic views; called for the end of Front Populaire policies; believed the Reich could restore order and glory to the fading empire. Another small faction found itself on the other side of the spectrum: they joined the Résistance, engaged in sabotage, conducted counter-intelligence missions, provided safe passage to England, dragged compromised comrades behind enemy lines. The large, vast majority was neither. To support Pétain was to support beliefs that could be unpalatable for many; to join the Résistance was to take incalculable risks. Activism was lethal, and for many, the decision was made for them: communists, Jews, gays, pacifists, artists, they would have died regardless. They were young, had no families to feed, and so many found themselves with the need to follow in exile, or simply rejected resistance because they rejected conflict.

When Paris was liberated in August 1944 and General De Gaulle marched on the Champs-Elysees, people rejoiced, cheered, embraced the Allied troops, whether they had been pro-actively engaged in their victory or had hidden in their rooms waiting for the war to end. The latter, according to my professor, benefited from the actions of a few: they were freed without having seen concentration camps, without having lost a limb or a relative. They rejoiced despite not sacrificing anything in the battle. It was, to him, the free ride all passengers on the merry-go-round win if one child grabs the prize. One fights for the many – and the many claim the same prize as the one. It’s the rule of activism: not everyone can contribute to the resistance as much as the other, but all must win. It is a basic fact of socio-political frameworks, and it must be understood that not every citizen was going to be physically present in Charlottesville, VA over that fated weekend during which fundamental values were tested in an almost unprecedented fashion.

But there is something to be said about commitment to those fundamental values, and to this extremely recent need not to polarize, not to draw lines, not to erect barricades, to compromise. Barack Obama was praised as a Democrat president for reaching across the aisle when most had elected him on a quite progressive platform. This created resentment, bitterness, a feeling of betrayal on the less centrist side of the Democratic party. What’s fundamental is however, by definition, not a question of bipartisanship. It is about collective identity: it is not about local policies or electoral cycles. Those values are often written (or described) in constitutional texts. As such, the United States will hold its First Amendment as a fundamental that cannot be taken away from any American. It however does not say that other American must consider this particular exercise of speech as of equal value to, say, the fight for universal health care, or a Gawker article.

Everywhere, human rights are under attack. They were held as a breakdown in national identity during the Brexit referendum. They were defined as responsible for the sharp divide between the presidential candidates in France. They are at the heart of a 5 year-long civil war in Syria. They are denied to millions of refugees in makeshift, sub-par refugee camps in Australia. Under the guise of civility and tolerance, we are accepting their violation as a legitimate political discourse. We are refraining from resisting and encouraging others not to protest them, we are classifying them as a fringe, a phase, a temporary ill to befell our otherwise civilized, evolved, democratic society. They are none of those things and history has proven that by never taking a stand, or by assuming there is a reasonable expectation of equal treatment and republican commitment, we will fail. Later, the fabric of society will be unraveled, slowly undone, until the law no longer protects the vulnerable and the body politic belongs to a violent few.

Now is the time for a strong moral, ethical and legal line to hold against what have constituted the backbone of modern human rights law as we know it. There is no equivalency to be drawn and no position to “agree to disagree” when fundamental rights are so directly at stake and leaders of the movement discuss creating an “ethnostate”. For all the signs that dystopian pop culture has created in the last few years and the success it’s generated – from Black Mirror to The Handmaid’s Tale – the difficulty to translate this generation’s anxieties and fears for the future has not made it onto the streets nor has it formed a substantial support of the recent warning issued by Human Rights Council treaty bodies. An innate and otherwise legitimate denial of violence in any shape or form from centrist corners has yielded passivity, an apathy, lulling vast portions of the population into a false sense of security. Those movements are not “fringe”; they are not “lone extremists”; they are an armed militia, and they have long claimed casualties. For 74% of the attacks committed on US soil to be attributed to extremists in the last 9 years, it is long, long time to show solidarity in disagreement and initiate false parallels. We are who we stand up against.

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It’s been a really trying year

I saw the date approach in my calendar with a nostalgic reminder of the sense of loss I felt then. A year ago, I had landed back at Heathrow in a rush in the hours before the polls opened all across the then-united Kingdom, queuing with other European citizens in the European passports line, a little uncomfortable with the referendum being held in the first place, but otherwise confident. I walked passed several magazine and newspaper stands on my way out, glanced at issues celebrating an upcoming victory for the far-right: an “independence day”, according to Nigel Farage, “freedom” from an institution few understood as anything else but a regulatory body, and most of all, “control”.

Back in New York, expats and Americans alike kept asking for predictions. Of course, 2016 was the year I was constantly proven wrong: I was firmly convinced Donald Trump, for instance, would never win the Republican nomination. I knew Europe always journeyed through cyclical bursts of far-right approval. I wanted to be receptive to criticism of EU institutions – a pet peeve of mine are references to “the EU”, just like “the UN”, neither being homogenous entities – that I often emitted myself. I had been tested, like many Europhiles, by the Commission’s reaction to the refugee crisis. I had been in opposition to a secretive and adversarial EU Council, that Ian Dunt qualified as “shady”. But it was so painfully obvious to me, from the continent, that the Leave camp as lying, over and over again, that I felt confident the British public knew better. We had spent enough time correcting statements that a Brexit vote would mean a withdrawal from the ECHR for it to be understood.
Of all the things I hate (people calling Bushwick “East Williamsburg”, forgetting the h at the end of my first name, anything written by Alan Dershowitz): being wrong. Needless to say, June 23rd was not a good day.

I work in Strasbourg. It’s not Brussels, but close enough thanks to being another seat of the EU Parliament, that the shockwaves radiated all the way to the Rhine. My colleagues and I were at the office early that day, snacking, nervously drinking coffee and checking our phones. It’s not necessarily a strange scene for people working in counter-terrorism. But this vote was about something else. It was about dismantling something we all believed in, although with different degrees of devotion. We were, are, all Cold War kids, children of Mitterrand and Kohl, great-grandchildren of Verdun, Eurostar frequent passengers, some of us coming of age with the Good Friday Agreement, Erasmus-educated, border-hopping staffers. My reaction to Brexit continues to be bipolar. On one hand, I react to it as a lawyer, interpreting article 50, issuing concerns about the Northern Irish border, attacking the arrogance of a bespoke agreement with Europol. On the other hand, it feels deeply personal. It’s a betrayal of my identity, of one growing up thanks and through the European Project – an idea separate from the European Union, with the end goal being that the two should reconcile through democratic, progressive values, pro-immigration, pro-human rights, pro-workers’ rights, an evolution a political finger to De Gaulle and Thatcher and a legal assertion away from US exceptionalism.

I was given the opportunity to let my heart on my sleeve for the legal commentary blog Opinio Juris about Europe, the European Union, the European project, and the fears the referendum brought to light as a Northern Irish citizen. I still haven’t corrected the typos.

When the result was officially announced, my office fell quiet. Sure, the referendum was not legally binding. Sure, the margin was not significant enough to call it a political mandate. Sure, the question itself was vague enough not to give a time frame for withdrawal or how exactly the UK will divorce from the rest of us. There was barely time to grieve, really. Jean-Claude Juncker became aggressive, Donald Tusk chose the bleeding heart route, and all around me, lawyers were suddenly dragged in the spotlight, a place where we feel either really comfortable or really uncomfortable, having to respond to questions for which there was never supposed to be an answer at all. If anything, to me, the UK had entered a historic phase: as a long-time partner in the creation and construction of what would later become the European Union, a major player in its most destructive wars, and an unparalleled ally in security, seeing the island decide to float away on its own in the choppy, freezing waters in the North Sea and taking Northern Ireland with it was impossible to fathom. It wasn’t “control”. It was the sort of “freedom” that one can only achieve when they jump off a bridge, for a split second suspended outside of the laws of gravity, but inevitably about to hit the ground in free fall.

As lawyers, we then had to find a way out, a legal answer to a political question. Immediately, what came to mind was a simple truth, a statement of fact: it was not legally binding, so why do anything? But David Cameron had resigned, and “mandate” and “will of the people” became such imposing terms we outlined Article 50 for everyone else. Article 50 says nothing. It provides a time frame. I started writing a few paragraphs everyday, a mock-diary of post-referendum news coverage, that I titled “Weimar Britain”. Every morning, I would call the hour in GMT, list a few highlights of the absurd positions taken by Theresa May or Michael Gove the day before, mention if Juncker or Barnier had gone for a round of golf, and finish with the weather forecast, the last sentence being, “the UK is still in the European Union”. I did that for a few months, the ritual becoming quite popular in my circles, so convinced I was that Article 50 would never be triggered. It just was inconceivable to me. Repealing every EU provision in British common law? Alienating the country from security agreements at a time of heightened security threats? What was that constant logorrhea about a sovereignty that was never questioned nor eroded in the first place? Everything was baffling, incorrect at best, surreal most of the time. And then I was told, in December if I remember correctly, by a certain British journalist, that I was delusional if I believed Article 50 would never be triggered. A few months later, he was proven right, and I was once again proven wrong.

The otherwise excellent Remainiacs podcast, started a few weeks ago, used the term “trauma” to refer to the feeling many experienced in the aftermath of the referendum. I won’t use the term, because my field of work reserves it for a different type of experience. I will continue to say what I feel is loss: a sense of unity, that was never there in terms of EU-wide political consensus; a sense of togetherness, certainly not correct considering how many opt-outs the UK placed on many EU treaties; a sense of belonging, that never extended to many immigrants much like my parents. The European project remains an idea, but it is an idea I firmly believe can translate if we empower the Parliament to oppose the Commission more and if, really, the Council conducts its work in a less shady manner. The role of EU Courts, so often maligned by UK politicians, is paramount. Brexit will not affect the UK’s membership of the Council of Europe, and the country remains part of the ECHR, at least for now. But the days are numbered: leaving the EU was never about renegotiating trade agreements or “taking control” of agricultural regulations. It was about shutting down immigration, about refusing to implement ECJ rulings on civil liberties, about the immaturity and irresponsibility of removing one state from transnational regulations that provide for medical progress and housing safety, among other things. It was a vote not based on concern for the lack of reform in the EU: it was about misplaced and misunderstood British identity, that was placed as superior to other states, and perfectly capable of raising the flag of the Empire after centuries of outward progress.

It’s been a year. It’s been a year of we, in Belfast, Derry, Newry, Enniskillen, having to remind everyone that our region has always been fragile and precarious, that our peace process was ongoing and needed attention. It’s been a year of sharing and re-issuing reports compiled by EU officials on the dire effects of a EU withdrawal on devolved administrations. It’s been a year of my colleagues publishing paper after opinion on the impact of Brexit on the 1998 Good Friday Agreement. Mostly, it’s been a year of reading about the fear, anxiety, and panic at the prospect of the border being raised. Typing this, I found myself capitalizing the word – Border – out of habit. It’s not just any border; it’s a border that symbolized a civil war. It’s a fault line I had known my entire life and that I still shudder, even if it is now disembodied, whenever I ride what is now a commuter train between Dublin and Belfast. It’s a border we were told we were never going to see again, one that Theresa May apparently just found out about, one that Secretary of State James Brokenshire discusses to provide assurances of our safety but without the necessary presence or authority required by the position of neutrality the UK is supposed to hold. There is nothing neutral about Brexit and its complete lack of interest in Northern Ireland. And so, we are entering our sixth month without a government or a Speaker of the Assembly; Dublin finds itself having to be a buffer between London and Brussels while being the key player on the chessboard, without its consent, without it having a say in the referendum being carried out in the first place. Northern Ireland voted to stay, because, as I wrote at the time, it is survival for most of us. It is for many others across the Union.

It’s been a year and I’m swimming against the tide of colleagues and friends leaving the UK to head to the continent, where their legal status is ensured, where they will not be asked for a visa and where their children can stay with their parents: I am moving to London. As I flew back to Europe a few days ago, once again from New York, but this time into Switzerland, I realized my biggest privilege wasn’t the most obvious necessarily. It wasn’t my education that the EU subsidized. It wasn’t my safety from war that the EU launched and protected. It wasn’t my health coverage that the EU ensured and funded. It is my freedom of movement. It’s the two passports – I am a citizen of nowhere – I hold, two EU citizenships, two possibilities of fast-tracking at airports, two possibilities of visa waivers. One is a Schengen nationality, the other is a Common Travel Area one. European citizens are trading this freedom at quite a cost: first the Schengen Information System (SIS II) database, and the Passenger Name Record (PNR) agreement with the US. Those will need work, reform, scrutiny, checks. We have a Parliament, we have Courts. UK citizens may lose their freedom of movement. They may be restricted, suspended, will have to re-negotiate. Education, family life, work, internships, travel, tourism, experience, all of this is dangling off the edge of a cliff.

It’s been one year. Imagine. One year, and no answer.

Going to a town

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Next month will mark 13 years since I’ve become a practicing lawyer. It’s been 13 very, very long years, during which I’ve learnt more about managing the long term effects of sleeplessness than anything else. Every year I reflect on the context of the practice of human rights law, and every year I find myself questioning this commitment, until I reach the same answer: I would never do anything else.

The last 12 months have not been quiet and comforting for this profession. Our colleagues in the magistrature have become enemies of the people. Our friends and peers in Turkey have been arrested and detained in an authoritarian purge. Across the Atlantic, we de facto represent dangerous dissent. Suddenly our work becomes more political than it’s ever been. It means it’s also more than necessary than it ever was.

This little note has been inspired by two conversations on Twitter, a platform of predilection for lawyers it seems, which confirmed two strongly held beliefs of mine: one, we are profoundly unhappy and deeply cynical, as illustrated by a thread on the (otherwise excellent and erudite) Secret Barrister’s timeline, asking practitioners to detail the consequences of their job. The answers ranged from high levels of alcohol intake to breaking down of marriages. Long hours, for some, low fees (yes), sexism, poor to execrable relationships with the press, never ending debates on jurisdiction and uncertainty of political decisions lead to the difficulty to see purpose in fulfilment in the practice of the law.

Two, in my specific area of practice, counter terrorism, defense and security, we are drowning under the weight of government secrecy on one side, and a culture of disinformation on the other. Few other issues are as inherently manipulative as security, few depend so much on perception and emotive reaction. Our attempt as lawyers not only to carry on with our day-to-day activities, monitoring emergency, accessing suspects in detention, ensuring the compliance of counter-terrorism legislation with transnational and international provisions, no small feat in itself, now also includes a self-imposed duty of information. I say self-imposed because none of us are under any obligation to develop any sort of public profile or to publish on non-academic platforms. There has been a wider desire to understand the inner workings of a system that was evidently destroying lives, to shine a light on principles of accountability at a time when moral outrage isn’t significant enough to effect change.

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I have always maintained, to the dismay of some, that the practice of human rights law is not advocacy. The universal application of norms demands universal enforcement; scrutiny must be exercised on an equal footing; and judicial redress demands unequivocal commitment to the right to truth. Alleging a human rights violation must not be lodged with the purpose of attaining a political score; it isn’t about hammering a rhetorical point home. Human rights, fundamental or derogating, translate into very real protection, in war or in peace, in heightened or low threat, against state power the same as against non-state armed groups. Yet the politicization of those rights, always predictable, too often inevitable, has now completely undermined the enforcement of those norms. If we lawyers can do a better job at explaining our role within the immense machine that are human rights organisations and institutions; if we can provide another element of access to necessary information, and spread knowledge of rights to which every individual is entitled, now is that time. We do not always reach the target, but we place critical tools into the public domain. It’s a priceless endeavour if the goal is to raise support against legal aid cuts, provide financial cushion to provide protection to refugees and asylum-seekers, to highlight changes in legislation that isolate individuals from courts.

While I have often worked alone and would continue to do so, and generally avoid large-scale debate because trained the old-school way, it matters to meet like-minded colleagues that push the practice forward through expertise, respect for the craft, and commitment to values. Public interest academics, professors and all-around commentators such as the invaluable Kevin Jon Heller have proven time and again how irreplaceable their input was. From violation of fundamental rights of refugees in Australia to briefing UN member-states on the ICC’s aggression amendments, Heller is not only contributing to a historical legacy of international criminal law, he is also steering not-so-young lawyers such as myself in the right direction. It is also more than worthy of note that Darragh Mackin, the young solicitor from Newry, whose mind absorbs information and focuses on legal detail in a stunning and breathtaking way, has now been named partner at the seminal legacy and human rights Belfast firm KRW. Few of us can boast of having achieved that level of excellence at his age; the reason why Mackin makes such a difference in the practice of his work is his unparalleled dedication to the people and causes he represents, from the Hooded Men to Ibrahim Halawa. This isn’t about publicity. It’s about the practice of law being a proxy for the maintenance of peace and the access to an equality we are sworn to uphold. It matters that it is being recognized, and that once in a while, perhaps once a year, under the sentimental cover of anniversaries and commemorations, we celebrate that we are part of a much larger group of people that, underneath it all, work towards inscribing change.

To answer that stranger in a strange social media land, yes, I am proud of the way I was educated and trained, I am humbled by the work of my colleagues, most of whom I would have never dreamt to call peers. This follows years of whispering to one another, “it will get worse before it gets better”; there will many more sleepless nights and many deplorable incidents of violence, death, torture, aggression, occupation, before we see a new dawn break, like it happened before. We are vessels; we are, in essence, the evolution of international relations away from belligerent status quo and lethal inequality.

But this is never something we could have done without journalists, without activists, without citizens of the world, without committed representatives. Before the elections in France, Brexit negotiations, peace talks in Syria, disarmament affairs, states of emergency, ad hoc tribunals, access to documentation of torture, mass surveillance, and destruction of hospitals continue to be a staple of our everyday lives, here’s to human rights defenders and those who defend them.

I heard you like black sites

Hey Donald, I heard you were reconsidering CIA  black sites overseas. I have a few notes for you. It will take more than 140 characters or less to explain the obligations of human rights law under counter terrorism, but I am hoping against hope you will pay more attention to this than you do your own intelligence briefings. 

Let us first agree on what we colloquially refer to as a “CIA black site”: those are secret prisons, detention facilities operated by the Central Intelligence Agency in which detainees are held incommunicado (without access to a lawyer, without knowledge for the International Committee of the Red Cross), for indefinite amounts of time, without charge or trial, and subjected to ill-treatment and torture for the purpose of interrogation. Those “black sites” – a shameful collection of legal black holes, where truth, memory and sunlight never shine – were built overseas.

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The reason they were built overseas is because of legality. This is no secret our profession bypassed ethics (albeit successfully, to our greatest dismay and fatal sadness) in the name of a government-led and government-approved definition of security. The Convention Against Torture, adopted by the General Assembly in 1984, holds torture as an absolute prohibition. The reservations emitted by the US Congress during the ratification process in 1992 established a definition that made torture only possible overseas, outside US jurisdiction – physical custody or control of another party. And thus, Donald, if you want to lift the ban on the use of torture on terrorism detainees, you will need partner countries to assist you in reviving a horror that is very much present: 41 men are still held in Guantanamo Bay, after having transited through one of those sites. I am here to tell you that you will not get what you want, at least not from European member-states. See, we have obligations to uphold: we have a Court tasked with trying violations, and an entire supranational Committee which mission is to ensure the enforcement of this Court’s judgments.

In a hearing in that same Court in December 2013, UN Special Rapporteur on human rights while countering terrorism, Ben Emmerson QC, described the CIA Rendition, Detention and Interrogation (RDI) programme as a “vast conspiracy”. It is: the number countries that have assisted the United States illustrate a form of international deference to the war on terror and the damage it spurred, to the detriment of efficacy and human rights. The Parliamentary Assembly of Council of Europe (PACE) has conducted two investigations into states’ collusion with the CIA, one via the rapporteur Dick Marty in 2006, and another via the rapporteur Claudio Fava in 2007. Both yielded reports that represent a seminal work of independent parliamentary scrutiny. In early 2016, the European Parliament closed its investigation, reaching the same conclusion: not only were states aware that this was happening, they chose not to collaborate with investigations, and raised classification issues. All of this works in the Trump administration’s favour. A culture of secrecy largely cultivated under transnational security agreements; his Democratic predecessor’s distaste of judicial scrutiny and accountability; a conflict in Syria that never ends, creating millions of refugees and destabilising the entire region. A celebrity fascist was elected because Americans, on top of being angry, were afraid. Europeans, on top of being afraid, are also angry at what took place in Paris, Brussels, Ankara, and Berlin, to name a few.

Ireland, the United Kingdom, Romania, Poland, Lithuania, Italy, Macedonia did everything from facilitating the CIA jets’ refuel, to building black sites on their own territory. To this day, only Italy has carried out a domestic investigation into its own intelligence services’ collaboration with the CIA, resulting in the conviction of CIA agents in absentia. The case itself is fraught with procedural errors, deliberate smokescreens, and abusive use of state secrets. Poland has been found guilty by the Court, and now finds itself in the position to ensure Al-Nashiri’s trial and sentence. None of those states have disclosed the agreement – called a memorandum of understanding (MoU) – with the Court, presumably to preserve their special relationship to the CIA, invoking the absolute necessity to remain on the US’ good side while they seek to participate in the purported “eradication” of terrorism. All of this, again, works in the US’ favour. Except for this tiny, insignificant, fraction of a detail: the rule of law.

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Now, we know. It’s been a long, painful and traumatic road since the first rumours, investigations, and articles about secret Gulfstream IV jets flying unidentified “detainee combatants” from one secret prison to another first came light. The European Court of Human Rights has issued a judgment that clarifies that, even in the absence of disclosure of those MoUs, there had been enough substantiated and corroborated evidence published in the press and through legal and academic research to make a conclusive finding on a gross violation of human rights law. A report compiled by the Senate Special Committee on Intelligence (SSCI), still classified but with its executive summary released in December 2014, remains an formidable excercise of domestic parliamentary scrutiny. The SSCI report, dubbed the CIA torture report, reveals the location of several black sites, the budget the CIA required to carry out that programme, in addition to recordings of interrogation sessions, legal memos in preparation of the establishment of the policy, and photos obtained through the Freedom of Information Act. The question, at this point, is whether the truth is as objective as it should be, and if its existence can replace accountability.

For all the bragging and boasting about enjoying the infliction of long term and damaging suffering on other human beings, for all the speeches given at Langley on extending covert operations, you have not created anything. You are simply considering lifting a ban on a period of American history that has not seen any closure because of an admission the government had “tortured some folks”. The United States is still in violation of UNCAT for refusing to prosecute officials that have authorized the use of torture. For the lawyers, this has led to successful careers. For the military, “harsh interrogation” is still present in the books. The black sites, meanwhile, enjoy a second life: the building in Temara, Morocco, has been used, once the CIA had left the premises, by the domestic intelligence agency to torture dissidents. Wherever the CIA has visited and stayed, visible scars are identifiable. Wherever the CIA tortured in secret, the impunity is perpetuated. Lifting the ban Obama enforced in 2009 isn’t the hawkish, vicious, cynical, dangerous and violent regime the Electoral College wished into existence. It is a pathetic, weak, ignorant, and self-destructive vision of counter-terrorism.

Torture is not efficient. Torture does not provide reliable intelligence. Torture has never made a country safer. Torture has never facilitated the end to illegitimate political violence. The unlawful detention of hundreds of men, some of them sold to US forces by bounty hunters and acknowledged as having suffered on the basis of false information, testimonies or mistaken identity, has provided ammunition for insurgency, has encouraged the use of imagery for the dissemination of similarly atrocious behaviour, and has stripped the United States and participating countries of any legitimacy in denouncing, and acting against, other states engaging in such horrific operations. It has reawakened the trauma of those same interrogation methods used in Northern Ireland at the height of its own conflict, mentioned in the footnote of a legal memorandum discussing, at length, how much pain can be inflicted on a human being without crossing an admittedly arbitrary threshold. You are not making America great again, Donald. You are simply returning to a very recent place in time when large-scale, international security operations were launched to the detriment of the rights of the victims, circumventing international law and international institutions, in the name of an irrational appetite for vengeance.

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Whatever the domestic framework, if you attempt to hire John Yoo again, will be hindered by the current National Defense Authorization Act (NDAA), through an amendment introduced by Sen. Dianne Feinstein; it will be blocked by the Detainee Treatment Act (DTA), both texts acknowledging the veracity of reports of the CIA’s conduct, and furthering the importance of ECtHR rulings against offending states. But most importantly, torture is an absolute prohibition; a war crime; indefinite detention without charge, the refusal of access to a lawyer, the denial of access to the ICRC, the removal of detainees to a military base, are violations of both humanitarian law and human rights law; several protocols of the Military Commissions Act (2006) violating fair trial rules. Donald, this is simple: the only national security position you are entitled to take in regards to the RDI programme is instructing the Department of Justice to prosecute officials that have created the programme, the private contractors that have devised interrogation methods, the intelligence agents that have supervised it and carried it out, as well as cooperating in every possible way with every request emitted by the ECtHR in order for our organization to respect our own obligations. Anything else would be in violation of international law; and every step of the way, there will be lawyers, legal academics, researchers, and journalists ready to expose the mechanisms you will use, because we know them by now.

You will drown under the weight of lawsuits, and you are already at odds with the medical professionals that had once assisted the 43rd President of the United States. For every government lawyer that will attempt to argue our role, as international human rights lawyers, is illegitimate foreign interference, that we are a fifth column, there will be the survivors of Guantanamo Bay to testify of what they have been through, there will be the families of victims of terrorism that seek fair redress, and there will be judicial oversight of counter-terrorism operations reaffirming that efficiency is a human rights obligation resting upon states. Including the United States. Including you, as the depositary of executive authority.

The only way to rid your administration of those pesky international lawyers such as myself is to comply with international law. There is no way around it. To quote the wonderful Linda Sarsour, a Palestinian-American who marched against you in DC, “I will respect the presidency, but I will not respect this president”. On this note, I bid you good night, Donald, and there is no need to tweet at me at 2 in the morning. 

A lesson in the abuse of information technology

2016 ended with “fake news”, a quite detestable oxymoron describing the onslaught of manipulative agit-prop pieces popping up on emerging – and at times, established news outlets. While this degree of lazy reporting is usually confined to darker corners of the internet or local papers, and concern local policing, this year, it blew to considerable proportions targeting the most significant news items: the US presidential election, the chaos in Syria and Yemen, as well as the role of the EU in the result of the Brexit referendum.

As a result, journalists, routinely targeted and attacked in recent years for doing their job, while reporting from extremely hostile environments across the globe, find themselves discredited at home, mostly in the US and the EU. Despite a vast array of evidence to the contrary, there have been several massacres in Syria, including the large-scale destruction of Aleppo; there have been hospitals hit by bombs in Yemen, civilian casualties in anti-ISIS coalition strikes, an attempted coup d’état in Turkey, Russian involvement in the continuous war in Ukraine, dubious political campaign funding of far-right parties; I could go on.

On this most anticipated New Year’s Eve, as the world prepares to celebrate the end of the annus horribilis, bracing themselves for the difficult years to come, I decided to share 10 of the most interesting, thorough, necessarily complex and salient pieces of journalism I have read this year; that I have relied on in my work as an international lawyer; that I have enjoyed and learned from as an active citizen; that have represented the world as it is to readers, the world as they should know it, work for, but more often than not work against. There has been many, many more that deserve to be highlighted. Those journalists deserve to be supported, followed, relied upon, and their expertise trusted.

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The White Flight of Derek Black, by Eli Saslow (the Washington Post, October 15)

2016 marked the ascent of the far-right in the West, a cyclical event in Europe, and a first in the United States when a bubbling but fringe movement rose to prominence with the election of Donald Trump and his cohorts of white supremacists nominated to key positions in the upcoming administration. This form of extremism, often overshadowed by the omnipresent threat of islamic terrorism, relies on severe indoctrination and threats of retaliation. This long read on the ideological turn-around of a trusted figure highlights mechanisms of belief and violence, as well as strength and courage to refuse.

 

How Do You Stop a Future Terrorist When the Only Evidence Is a Thought? by Rukmini Callimachi (The New York Times, June 21)

Rukmini Callimachi has reported on ISIS like few have before or since; her 2015 on the horror suffered by Yazidi women as they were enslaved by the fighters in Iraq has been seminal story-telling in an era of detachment from the inhumanity of war. Following the events in Paris, the New York Times reporter has travelled across Europe and the Middle East in order to regularly provide, through articles and Twitter updates, an unparalleled insight into the inner workings of the self-styled state, as well as underlining the strategy of the response and its shortcomings. This one studies the difficulty of placing the cursor on a spectrum of radicalization.

 

‘Why did they wait to kill us?’: How the attack on the aid convoy near Aleppo unfolded by Louisa Loveluck and Thomas Gibbons-Neff (The Washington Post, September 24)

The bombing of a UN aid convoy on its way to (partially) relieve the siege of East Aleppo on the outset of the summer has riled up NGOs and organizations across the globe, trying to assess the damage done to the humanitarian cause in failing to help Syria, to the rule of law for targeting UN workers, and most importantly attempting to decipher those responsible. In a blame game that has characterized much of the Security Council debates on the country in 2016, Loveluck and Gibbons-Neff conducted a clinical study of the munitions used, the timing of the attack, collecting witness testimonies and analyzing video footage to provide the only independent report into a defining moment in the battle of Aleppo.

The Hot Land: How a Lime Grower Led an Uprising Against one of Mexico’s Bloodiest Drug Cartels by Ryan Devereaux (The Intercept, September 6)

Often self-effaced, Devereaux has managed to compile a solid body of work since the humble and stumbling beginnings of The Intercept in June 2013. Usually focusing on national security, he traveled to and reported from Mexico for months, working on student disappearances, state repression, and here, on the ad hoc formation of resistance to the dictature of violent drug cartels in a country rife with impunity. At the heart of the destructive war on drugs, Mexico struggles to survive, to shelter its own, and to rise above shadow armies and control through corruption. This specific story, as well as others long reads and photoreportage he issued in the previous months, deserve your attention.

As The Saudis Covered Up Abuses in Yemen, America Stood By by Samuel Oakford (Politico, July 30)

The carnage in Yemen has been denounced as aided and abated by western states, specifically the US, UK and France, arming Saudi Arabia with high range and high precision weapons despite the warnings from humanitarian organizations that those munitions were used in attacks that could amount to war crimes. The silence of most governments in the face of those serious allegations only matched the incredibly, nauseatingly profitable business of arms trade with the Kingdom, the highest recipient of weapons in 2015. As governments now start to wake up to the responsibility, this piece provided a starting point for activism and promotion of arms regulation in the face of atrocities.

The Appearance of Disappearance: the CIA’s Secret Black Sites by Crofton Black and Edmund Clark (Financial Times, March 17)

I first saw Crofton Black as he testified before the European Parliament’s inquiry on CIA rendition in European states. He shared his work on the hidden prison in Antavilliai, Lithuania, a windowless white building in the middle of the forest the Vilnius government said was a “jewelry storage facility”. With photographer Edmund Clark, he released a unique, unprecedented book called Negative Publicity, a remarkable look at the mundane aspect of atrocities, the everyday conversations between perpetrators and their facilitators, a strange, eerie window into the base logistics of the CIA rendition program. Black’s evocative writing conveys the unshakeable discomfort of the silence surrounding those places.

Warning From the Syrian Border: Trump Reminds Us a Bit Too Much of Assad by John Knefel (Rolling Stone, May 12)

Knefel spent a lot of time in Turkey over the last 6 months studying the flow of refugees from Syria and the lack of safety they experience due to a porous border; the foreign fighter phenomenon and the role of the peshmerga in the fight against ISIS; and the human dimension of never be able to leave behind a war that will define a generation in the suffering it has inflicted. In here, a painful but necessary reminder that the 2011 insurrection was a legitimate uprising against an oppressive leader, a thoughtful reflection on the role of dissent, while we still can.

Inside RICU, the Shadowy Propaganda Unit Inspired by the Cold War by Alice Ross, Ian Cobain, Rob Evans and Mona Mahmood (The Guardian, May 2)

Countering extremism, this pseudo science denounced by the UN Special Rapporteur on human rights while countering terrorism in a March 2016 report, has led to unpalatable policies in the United Kingdom, where the main scheme, Prevent, has been criticized for targeting individuals, groups and families with no tangible link to terrorism. A concerted effort was made at European level following the January 2015 attack in Paris to offer a “counter-narrative”, a government-led initiative to lead potential terror recruits away from the path of radicalization. That, too, was doomed to fail.

Les Journalistes, Nouvelles Cibles Préférées des Populistes by Jean-Bernard Schmidt (self-published on Medium, November 20)

Toward the end of the year, as the introduction specified, the lack of trust for any piece of reporting that did not hold to confirmation bias reached a level of surrealism and ignorance that baffled even the most experienced of internet users. French journalist Jean-Bernard Schmidt, who co-founded the investigative outlet Spicee in 2015, worked on a year-long project to debunk conspiracy theories and the role of the new media in propagating them. His opinion, sadly not translated for the non-francophones, explained that truth is the most dangerous weapon to be used against populists; and that as such, they tend to work towards discrediting their critics.  A wonderful and powerful defense of investigative and critical journalism.

Calais Minors Lured From Camp Then Abandoned by Authorities by Lisa O’Carroll, Amelia Gentleman and Alan Travis (The Guardian, October 27

Many have written about the lack of empathy shown to refugees in Europe as the crisis has formed a front of isolationist retreat in Fortress Europa. The evacuation of “The Jungle”, the makeshift camp in Calais where, in October, approximatively 8,000 refugees and asylum-seekers awaited their fate – among which over 3,000 unaccompanied minors – was touted as a success by the French authorities. For weeks, Paris had sought an agreement with London over the fate of children, and to end the constant expansion of tents, shipping containers on dunes, a squalor that even MSF denounced as untenable. Said clearance was rushed, poorly scrutinized, half-botched. It led to some severe violation of basic refugee rights.

 

 

 

 

 

 

 

 

What the hell happens now on Fantasy Island?

 

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Since June 24, I have been going back and forth across more or less visible borders, attending talks, discussions, debates, symposiums, hearings, and other forms of airing of grievances related to the EU referendum in the U.K., in which a very simple question was asked: would British citizens like to retain membership in the European Union?

By the time most readers of this blog sit around a table filled with food prepared and packaged from all corners of the single market, introducing romantic  partners from all over the Schengen area, and exchange gifts paid for in Euros, it will mark six very long months since a vote that defined the future of not just the UK, but the Union as a whole. In an accessible yet outstandingly thorough book, Ian Dunt details that not only were the British people not prepared for the full-bodied outcome of the referendum, neither was their government. It lays out the responsibility at the feet of Theresa May, perceived as broad-shouldered and strong-willed, but just as much bumping in the dark and stumbling upon ideas. Most importantly, what it describes in numerous chapters focusing on economic consequence is that removed from immediate and dire financial payback, the UK is losing more than free trade agreements. Several key ideas are contained within the right to access the single market. Some of those ideas are entirely contingent on EU membership; some of those ideas are tied to freedom of movement.

EU citizens benefit from an incredible amount of privilege, compared to other political systems. The structure of the organisation, not federal but tailored to further integration, allows citizens of all member states to: be represented in a parliament; access specific courts; appeal to a broader consensus; receive grants; be financially supported in academia and the job market; be compensated in the event of an illness; see political, civil and human rights safeguarded. Among those rights, Brexit affects freedom of movement the most. Something very specific to the United Kingdom, however is that this withdrawal from the European Union, no matter how world-altering and overwhelming it is, may not even be the end game. At a talk at LSE Law on 8 December, professor and barrister Conor Gearty of Matrix Chambers explained his position quite clearly: for the Prime Minister, exiting the EU was simply a proxy move towards a repeal of the 1998 Human Rights Act.
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Indeed for many, human rights and the legal obligations contained therein are at bigger fault. It was the ECtHR in Strasbourg most often accused of violating British sovereignty; it was the Human Rights Act accused of forcing the nation to welcome refugees beyond coercively agreed upon quotas; it was principled legislation that formed adherence to a European project the U.K. never felt much a part of. Slowly unveiling its arguments over the summer in a series of videos, “On Fantasy Island” is a compelling collection of all the lies and myths surrounding Britain’s capacity to provide for the safety and liberty of its citizens outside of the realm of international law. It starts with reminding the citizenry that the roots of the European convention on human rights themselves are British; that the history of European construction and expansion has been based on British cooperation; but that mostly, the Strasbourg court, often maligned to the point of needing to be defended in the New York Times, has never been opposed to the United Kingdom so much.

 

Both Dunt and Gearty, while focusing on separate institutions – the EU for the former and the Council of Europe for the latter – are preoccupied with the same question: what will become of England, Wales, Scotland and Northern Ireland once London initiates the process of removing itself from the rest of the world? With humour and quite a rare concern with facts, legal accuracy and political consistency, the issues here are tackled with less doom and gloom that could be anticipated. There is time, although little, to stop the ongoing machine. There are safeguards, although vanishing, to protect what can be saved. There are figures, although drowning in white noise, to provide much needed expertise. Dunt and Gearty are among those. The image of an isolated, alienated Britain on a self-imposed exile adorns the cover of both their books, as we are about to step forward into a year marking the ascent of populism and geopolitical retreat in the name of base fear and incorrect perception of security.

 

One thing is certain: we on the continent must shoulder some of the blame. The most europhile among us must reflect on where the institutions we take so much pride in have failed to appeal across social classes, did not step up in times of heightened worry – about terrorism, about employment, about immigration, even more so about identity. The generation that has entered the job market in 2008 feel entitled to basic labour and union protection, to freedom of movement, to a right to privacy, to access to health care, and to protections against police violence. If the EU has felt like it itself encroached on progressive visions for commerce, on self-determination or has undermined the principles of democratic representation, then it must consider its reaction to the biggest issues of our time: the refugee crisis, the Greek debt, surveillance, freedom of opinion. The EU must take a look, beyond poor communication, at what it forgot to mention about its role in sheltering acquired rights, the permanence of entitlements, and the necessity to keep close to citizens. Otherwise, the Nigel Farage of Europe – Le Pen, Wilders, Five Star – will continue harvesting votes from those who deserve better.

Ian Dunt: Brexit: What the hell happens now? At Canbury Press.

Conor Gearty: On Fantasy Island, at Oxford University Press.

 

The truth about torture: on disclosure and obfuscation

The creation of an international court that could rule over severe crimes, including the absolute prohibition, should function as an effective deterrent for states members to the Convention. The legacy of clear, accessible judgments should provide for a solid cornerstone in order to ensure the respect of the rule of law across its jurisdiction. But when it comes to torture, the entire process of accountability relies on disclosure, that respondent states block each and every step of the way.

Al-Nashiri v Poland

In December 2013, the Court held a seminal hearing in the case of Al-Nashiri and Abu Zubaydah v Poland, one of the first applications lodged regarding member states’ collaboration – collusion – with the CIA in its rendition, detention and interrogation (RDI) program. The two men, still held in Guantanamo Bay, were detained in a black site, a secret prison, on Polish territory, where they were tortured before being sent to the naval base in Cuba. Poland has always categorically denied its involvement in what could come to be known as the torture program. During the hearing, the Grand Chamber repeatedly asked the government of Poland to provide any memorandum of understanding (MoU) that would have been undertaken with the United States. This could shed a much needed light on the extent to which Poland was expected to collaborate and hold responsibility for US intelligence activities on its soil. The hearing, which lasted over three hours, focused on repeated events of denial of access to information and documentation to the appellants and their lawyers. Ultimately, the Court requested Poland to comply.

Poland found itself in a position where documentation that had been submitted to the Court unequivocally pointed in the direction of collusion. It would be unthinkable that a state would allow foreign intelligence activities, especially of such wide-scale logistics – from the use of its airspace, airports, to detention facilities and armed guards – without prior contractual approval. The Court then offered Poland the possibility to submit any MoU under national security classification, provided by clause 33 of the Rule of the Court, so as to receive information on which to base a future decision without the documentation presenting a risk to the state by being disclosed along with the judgment and the rest of the case file. Upon this information being shared, I decided to challenge this classification, arguing that any deliberate collaboration with the CIA despite the actions being performed by agents in black sites – and the MoU perhaps even providing for Polish agents to be present during interrogations – was serious enough to warrant disclosure.

I received a letter a few weeks later from the Registrar’s Office that implied that Poland had not submitted anything despite the offer of the information to be classified, and that in any case, a judgment was forthcoming. Sure enough, the decision was published on July 24, 2014, not only making note that Poland had indeed collaborated in the violation of the absolute prohibition under Article 3, but that the state was found in negative inference with the Court, refusing to provide information with regards to the activities under litigation. In a landmark ruling, the Court decided that evidence collected with media reports, press investigations and gathered by legal investigators was sufficient to make a determination, and would not need government-issued documents. Poland sought to overturn the decision, only to be found trapped between a rock and a hard place: the Court had ordered that it sought assurances, on account of having an agreement with the United States, that Al-Nashiri would not be facing the death penalty. Al-Nashiri is currently facing a troubled military commission for charges carrying a death sentence. Poland either has to detail its relationship with the CIA, or interfere without the possibility of a result.

Al-Nashiri v Lithuania

The investigation of the black site in Lithuania, that arose with the case of Al-Hawsawi, has has considerable political ramifications at domestic level. It did not stop lawyers for the state to argue for a curious interpretation of state responsibility at a hearing before the Chamber in June 2016, denying the veracity of press reports, the substance of prior investigations, the role of EU rapporteurs in previous inquiries, but never the body of work compiled by the US Senate in a report which executive summary was released, partially redacted, in December 2014. The extent of the denial was perhaps even more egregious than that of Poland, in light of two years worth of media coverage of EU states’ collaboration in rendition, acknowledging detention of several detainees that could be identified, even recalling the specific methods of torture to which they were subjected. In a harrowing book, journalist Crofton Black, who testified about his years-long investigation to the EU Parliament inquiry into CIA rendition, talks about the various contracts undertaken to build the black site in Antaviliai, a small village ten miles north of Vilnius.

 

Past and present officials gave testimony; requests for information were filed with ministries, the State Security Department and the Border Guard, the Customs, the Civil Aviation Administration and airports. The press, pundits and politicians commented loudly from the sidelines, speculating and sniping. Daily, contradictory stories emerged, like ripples expanding and interfering with each other, tell-tale signs of an unseen shoal beneath the surface. While some spectators were eager for scandal, others remained sceptical. ‘Anything can happen, but why do we have to believe that this has happened?’ asked the former head of the military, Major General Jonas Kronkaitis. ‘There are many people who think that little green men arrive in Lithuania from Mars, but do we then carry out an investigation? No, we leave it alone.’

Even after the hearing, the denial was maintained in the face of unequivocal coverage. Black carried on releasing information, from photographs to court transcripts, in stark contrast with the arguments put forward by the Lithuanian government, for whom the activities of a foreign state on its sovereign territory may as well be fortuitous at best, and at the very least exempt from scrutiny. Interference from intelligence holds a very specific history in Central and Eastern Europe, the epicenter of the Cold War, for decades satellite of a surveillance state, later chosen to be host to NATO bases and post-German reunification deployment. It seems that, in Lithuania like in Romania, Estonia or Poland, a relationship with the CIA holds more power than adherence to legal requirements under international human rights law. Exposure to the suffering endured by former detainees, and the role played even by facilitating detention if not directly organizing it, leaves a mark on public opinion, supporting ongoing investigations. Evading the scrutiny of the Strasbourg court and the committee of the Council of Europe tasked with verifying the enforcement of its judgments can only diminish the country’s standing within the organization, perhaps not to the point, however, of weighing significantly enough against the foreign interests inherent to a special relationship with the United States.

Ireland v UK

 When the legal advice supporting the use of torture by the CIA post 9/11 was declassified, a footnote jumped at the face of many observers: Bybee, advising the government, issued a long opinion on the threshold between ill-treatment and torture, and based his decision on a 1978 judgment from the ECtHR. According to him, the final ruling in Ireland v UK, which application was lodged in 1974, endorsed the CIA’s interrogation methods as “harsh” or “enhanced” interrogation techniques, never crossing the threshold into the absolute prohibition. That an international court could have ruled so decisively back then surely reassured the US government, then proceeding with experimentation of some techniques on one of it earliest detainees, Abu Zubaydah. It was later found that some of the methods had not been sanctioned by the Office of Legal Counsel (OLC). Nevertheless, the existence of that threshold and the use of this justification to approve of what would have come to define abuses under counter-terrorism law in our generation was a jarring find.

Forty years onwards, new elements have emerged after decades of investigation through British archives. The team of surviving men detained during the Internment in 1971, colloquially referred to as the “Hooded Men”, have petitioned to have their case reopened before the Strasbourg Court. A judicial review was underway in Belfast, during which a judge found himself playing referee between requests to release documents and government lawyers arguing first that documents didn’t exist, then that more time was necessary to field through the archives and release them in the appropriate conditions. The frustration over access to the truth and the duty of investigation as interpreted through Article 2 of the Convention is palpable, and has journeyed all the way to Strasbourg, where the Court has granted a second extension to the British government in regards to justifying their position on one crucial point: deliberate omission.

The documents that were submitted by the British Government after the application was declared admissible were found to be incomplete. The respondent state had deliberately hidden parts of its research and activity logs in order for the evidence submitted by the appellants to fall underneath the threshold of torture; the Court, ruling the methods of interrogation were cruel and unusual punishment, in violation of article 3 still, did not make a finding of torture. Somehow, such an outstandingly infliction of suffering, not being an absolute in nature, did not carry the same weight, did not yield the same outrage, did not demand the same amount of responsibility. There is no impunity for a violation of Article 3, but that threshold, thus manufactured by a partial look at a complex picture comprised of state control of colonized territories and the irrational fear provoked by terrorism, seemed to somehow help the British government escape the obligations resting upon it for perpetrating acts of torture, namely, the prosecution of those responsible.

The broadcast of “The Torture Files” on Irish public channel RTE led to an awkward dance between Dublin, London, and Strasbourg, the complexity and political meanderings of inter-state cases being weighed down even more by the unwillingness to provoke any form of conflict in Northern Ireland, “rock the boat” in a way that could be perceived to jeopardize a hard-won, fragile stability. Uncovering a lie, no matter how blatant, has the potential to rattle, to unsettle, to generate mistrust. In the face of the abuses that have been committed between 2002 and 2009, and constantly threatened to reemerge by political candidates capitalizing on fear, disclosure is not only essential – it remains an obligation. Appearing before an international court which duty is to examine the degree to which domestic investigations are satisfactory should be in itself a signal that the rule of law has been coopted in the name of political power, corrupted by an executive necessity that the court exists to curb. Lying before the ECtHR is not just disregard for the most fundamental of obligations; when it comes to the absolute prohibition, it constitutes more than negative inference. It is obstruction.

Are there any consequences?

Beyond monitoring the implementation of the Court’s judgments via the relevant committee, it is difficult to assess whether the existence of such a jurisdiction has enough of a deterrent effect against human rights abuses committed in the name of counter terrorism. The political impact of possibly violating understandings and otherwise enshrined intelligence relations far outweighs the legal consequences of breaching the prohibition of torture; the argument of necessity, constantly debunked and dismantled by observers but always influential, seems somehow still opposable to fundamental rights. As the threat of terrorism comes and goes like the tide in a rapidly evolving world, as international law seeks to catch up with modified conflict paradigms, the trend is to separate the concept of national sovereignty from that of supranational accountability, to supersede the right to self-defense, to create a considerable and unbridgeable difference between intelligence activities and judicial transparency.

The outrage provoked by long lasting claims in the United Kingdom to withdraw from the Convention and a recent bill passed by the Duma to reserve the state the right to ignore the Court’s judgments is not enough. Education about the role of the Convention, its place in EU history and construction, the systems it implements and the political relations it has spurred and governed is paramount. Most importantly, it is not necessarily the Convention as an instrument, but education about human rights as a whole, the reasoning and faith behind the prohibition of torture, the evolution behind installing it as the unjustifiable crime, and the values that tie us together as an international community that can ensure the perennial role of the Court’s judgments against torture. The transparency that comes with an investigation requested under the right to a fair trial and the obligation to adjudicate will continue to shed light on why such work is crucial, essential for the respect of human rights worldwide.