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.

All quiet on the eastern front

The cases up for review at Guantanamo are as varied as the inmates themselves; their review boards, still in a dystopian universe of partial, remote disclosure and peculiar choice of classification; their release, despite clearance, more than uncertain. Closing the prison involves trying prisoners that have spent a decade or more inside the walls of a naval base in Cuba under circumstances that can escape their understanding – and that of their legal counsel. In that environment, legal creativity and ingenuity is paramount. And sometimes, it’s the pragmatic and hard cold logic that can perhaps build a way out.

Khalid Odah holds a picture of his son, Fawzi (c) LA Times

Fawzi Odah, one of 12 Kuwaiti detainees

Fawzi Odah is a citizen of Kuwait, the son of an Air Force colonel who had collaborated with the US during the first Gulf War. Captured in early 2001, he was then 23 years old. According to his family, Fawzi was performing acts of charity in Afghanistan when he was mistakenly captured in the post 9/11 frenzy that sent US troops to the region. The Pentagon’s version is vastly different – he would have been seized while roaming the Tora Bora mountains, carrying an AK-47 and swearing allegiance to Bin Laden. US bombs were at the time shelling the area, and Fawzi would have either been helping victims – or participating in the recruitment and training of a London-based terrorist cell. Those versions are mutually exclusive, and only a thorough judicial investigation could bring the truth forward.

The US has been at war with Afghanistan since 2001. Anyone captured on Afghan soil and detained under the provisions of the Afghan war can and should, legally, be considered a prisoner of war. This is what Fawzi Odah’s family and representation are arguing in this case – and in his status of prisoner of war (PoW), Odah should be immediately released as soon as the hostilities end. Problem is, there is no end in sight. If President Obama announced in his most recent State of the Union address that it was time to end “America’s longest war”, the Department of Justice, in Odah’s case, seems to think differently, or, in any case, not buying into the political convenience of announcing the end of a war another administration has started, but failed to bring to a close.

In his latest message to Congress consistent with the War Powers Resolution, President Obama detailed the mission in Afghanistan to great lengths (Libya was a one-liner, Somalia a barely longer afterthought).  He concluded (emphasis mine):

As I noted in my report of June 14, 2013, on March 25, 2013, the United States signed a Memorandum of Understanding (MOU) with the Afghan government under which the United States transferred all Afghan nationals detained by U.S. forces in Afghanistan to the custody and control of the Afghan government. Pursuant to the MOU, any new Afghan detainees are to be transferred to Afghan custody and control within 96 hours after capture. United States forces in Afghanistan continue to detain approximately 53 third-country nationals under the 2001 Authorization for the Use of Military Force (Public Law 107-40), as informed by the law of war.

But can said law of war be truly applied to the indefinite detention that has taken place at Guantanamo for the last 12 years? Is any detainee captured in Afghanistan (as opposed to those found in Yemen or Pakistan) entitled to the protection of the laws of war? There is hope in attempting to grasp a shred of logic, a glimpse of consistency and holding on to the vain idea that the rule of law could ever be called upon when it comes to the horrific fate of the inmates of Guantanamo Bay. This is an unprecedented idea of defence, clearing and release of detainees, and it begs attention for the simple reason that it is at least addressing the fact that Afghanistan has maintained the appearance of a traditional battlefield.

At least for the majority of military deployment. (1)

US troops out on a patrol, Afghanistan, 2009

The 1950 Geneva Convention and Prisoners of War

The 1950 Geneva Convention relative to prisoners of war, their classification, determination, treatment and – eventually – release applies

to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

Whether or not the conflict in question is in an active phase of hostilities or not is not subject to debate when discussing the provisions of the Geneva Convention. Under Article 4, anyone considered a belligerent and thus captured by one of the contracting parties to the conflict can be considered a prisoner of war. By asking the United States to recognise his status as such, Odah would subject to demonstration the narrative brought forward by the Pentagon, in that he would have been seen carrying a weapon (Art. 4-2-c), a member of a militia (Art. 4-2), and belonging to an authority not recognised by the party having captured them as a PoW (Art. 4-3).

Granted, any person not falling under the straightforward and somewhat easily determined categories of Article 4 can still be detained, without benefiting from the status of protected person – civilians, journalists, medical personnel and chaplains, to summarize – until such time as their status has been determined by a competent tribunal (Art. 5.). Has this time come for Fawzi Odah? Are twelve years long enough for a status of belligerent to be determined by a competent court? In a 2004 decision, Rasul v Bush, brought forward by the ever so relentless Center for Constitutional Rights, Judge Kennedy’s decision raised the issue of the amount of time that passes for indefinite detention to become endless and hopeless detention:

The detainees at Guantanamo Bay are being held indefinitely and without benefit of any legal proceeding to determine their status. As the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

The CCR, in their summary of the case linked above, explains that several amicus briefs had been filed in addition to the written argument to the Supreme Court, including that of former American PoWs. This defence just might work, despite the fact that a prisoner of war is still protected by the basic rules of war as defined in the Geneva Convention, which have been violated at will during detention at Guantanamo. A prisoner can not renounce to any of his or her rights under the Convention; and recognition of said status could hereby impose duty to act upon the United States due to violations of humane treatment of said PoWs (articles 13, 14, 15  and 16 have all been violated in Guatanamo Bay. (2))

Guantanamo Bay’s Camp Delta: “Honor bound to defend freedom”

If we accept to – hopefully temporarily – suspend seeking reparation and retribution for the treatment of the detainees at the naval base, and concentrate on the release of the prisoners, in this case Odah – one of the last two Kuwaitis still being held in the prison – the Geneva Convention is clear. This is when the situation of the United States, and President Obama’s promise both in his address to Congress and this year’s State of the Union, meddles into confusion, uncertainty, lack of transparency, if not an egregious discrepancy between presidential wish fulfilment and the thorough pragmatism of the Department of Justice. Per Article 118,

Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.

In his State of the Union address on January 14, President Obama told Congress, America, the world:

More than 60,000 of our troops have already come home from Afghanistan.  With Afghan forces now in the lead for their own security, our troops have moved to a support role. Together with our allies, we will complete our mission there by the end of this year, and America’s longest war will finally be over.

Between presidential promise and alarming reality

In a piece published today in the Los Angeles Times and written by Richard Serrano, the issue of the Department of Justice catching up on the end of the war in Afghanistan has been made clear: US District Judge Kollar-Kotelly has dismissed the suit, calling it premature. And it is. A promise is not a ceasefire; a presidential speech will not sign the official end to the hostilities; an executive tradition such as the State of the Union and the general call to support the President does not constitute a thoroughly detailed enforced foreign policy. It certainly does not give any specific end date to the war. But it could have given some hope to men detained for over a decade, and who can not see any silver lining beyond the barbed wire fence of the prison. The proverbial end to the war “cannot be known at this time“, said the filing, and concluded,

It is inappropriate to engage in speculation at this time as to the timing of the future end of the hostilities.

Because the war in Afghanistan also launched the War on Terror, which will not end, and perhaps never end if counter-terrorism is vowed to become foreign policy in and of itself, if national security becomes the only motive for international and unilateral intervention, and if presidential edicts replace the War Powers Resolution. The end of the active phase of the hostilities in Afghanistan will not imply the complete withdrawal of US troops in Afghanistan. It will certainly not mean that the proxy war that has been effectively implemented and perfected under the Obama Administration will suddenly cease, hereby providing an end to the reason Guantanamo Bay even existed in the first place. The interpretation of what constitutes an active war has evolved since the Second World War, and has been radically altered by the concept of an international, global, cooperative “war on terror”, this worldwide pseudo-mandate to act and intervene in the name of an unknown, vague, unidentified and especially not judicially indicted enemy. Again, in the State of the Union:

For while our relationship with Afghanistan will change, one thing will not: our resolve that terrorists do not launch attacks against our country. The fact is, that danger remains.  While we have put al Qaeda’s core leadership on a path to defeat, the threat has evolved, as al Qaeda affiliates and other extremists take root in different parts of the world. In Yemen, Somalia, Iraq, and Mali, we have to keep working with partners to disrupt and disable these networks. In Syria, we’ll support the opposition that rejects  the agenda of terrorist networks.

Obama (c) with VP Biden (l) and Speaker Boehner (r)

The danger remains, but the danger is always present. Any nation-state at any given point can be subjected to attack, unless a Westphalia-like fragile status quo emerges from the 125 countries present at the United Nations. The presence of a danger in no way implies thorough military development, domestically or abroad; in no way does it imply the increasing number of permanent bases abroad; in no way does it demand the full cooperation of other nation-states in their own military deployment in third countries. Any of those actions can be considered an active part of hostilities.

But I will not send our troops into harm’s way unless it’s truly necessary; nor will I allow our sons and daughters to be mired in open-ended conflicts.  We must fight the battles that need to be fought, not those that terrorists prefer from us – large-scale deployments that drain our strength and may ultimately feed extremism.So, even as we aggressively pursue terrorist networks – through more targeted efforts and by building the capacity of our foreign partners – America must move off a permanent war footing.  That’s why I’ve imposed prudent limits on the use of drones – for we will not be safer if people abroad believe we strike within their countries without regard for the consequence.

The key word here is “aggressively”. The cooperation with the UK, with France, with other NATO allies will surely bring about more active hostilities aside, especially in Africa where danger in Mali has already placed France in a difficult position; where the rules of UN-sanctioned intervention have been all but bypassed in Somalia; and the dim, slow roar of an approaching drone, although unmanned therefore not planned by ancient and obsolete laws of war, still remains an active part of the blood shedding and difficult targeting that is war.

If anything, the Department of Justice has refused to give in to the prudent and patient political rhetoric that is, in effect and deprived of all its emotionally engrossing figures of speech, propaganda. It is claiming an end to war, the longest war, and the promotion of peace while aggressively monitoring foreign deployments and using systems of intelligence, surveillance, captivity, detention, targeted intervention and fantastic, K. Dickinsian levels of technology to fight a war that had never been fought before. It is perhaps more effective to dismiss the idea of a foreseeable end to war. It is also terribly disheartening, disenchanting, and ominous, to deem “inappropriate” the concept of ending a war that has already outlasted any other.

But can we tell a man caged in a prison he had never heard of before, fighting a war he didn’t recognise,  in a country that wasn’t his,  for a crime he says he didn’t commit, that there is no end in sight?

(1) the author is currently working on a judicial review of counter-terrorism laws that will address the legal question of counter-terrorism as a proxy war. 

(2) this includes a vast number of similar provisions specifically detailed in the Convention in addition to the general provisions of the articles listed. Some of which relative to right of legal counsel, right to education and religious activities, and fair trial – which is never satisfied by military commission.