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.

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Iraq war and the test of exceptionality: Jaloud v Netherlands

On April 21st, 2004, 13 months after the beginning of Operation Iraqi Freedom, the Iraq war was entering its post-invasion, direct occupation phase. The Coalition Provisional Authority (CPA), led by Paul Bremer, had divided Iraq in four zones, under three different leaderships: US forces would have control over northern and central Iraq; Southern central Iraq would be under multinational power, under Polish command; the Southern zone, also under multinational power, would be led by UK forces. The CPA was led by the two major occupiers of Iraq – the US and the UK – and allies Australia and Poland. The assisting forces, additional troops on the ground forming Combined Joint Task Force 7, created the multinational alliance operating under the United Nations Security Council (UNSC) Resolution 1483. One nation deploying troops in southern Iraq at the time, under British command, was the Netherlands.

Gate of Camp Smitty in Al-Muthanna province, courtesy of the Australian government

Route Jackson, a main supply artery coursing through the zone in the province of Al-Muthanna, operated with different security checkpoints. One of them, named B-13, was operated by members of the Iraqi Civil Defense Corps (ICDC) under Dutch supervision. Barrels were situated in a manner to announce the checkpoint; cars were not systematically stopped, but advised to slow down in order to submit to an eventual check by the armed forces in charge of B-13. At 2.12am, a car approached the checkpoint; turning around, shots were fired from inside the car and at the ICDC forces. No one was injured, and as fire was returned, the car hastily drove away. The next facts are somehow disputed by the counsel and government; in matters of chronology and decision-making, the case rests on what follows: fifteen minutes after the first car disturbed the checkpoint, an ICDC sergeant summoned Dutch troops for assistance, troops led by Lieutenant A. Around 2.45, a Mercedes arrived near the checkpoint, hitting some of the announcing barrels on the way. Not deterred, the car continued to drive towards the checkpoint. At this moment, shots were fired at the car; Lieutenant A. shot 28 rounds from a Diemaco assault rifle, and ICDC troops would have added to the gunfire, firing shots from AK-47s.

Azhar Sabah Jaloud, son of the applicant in the case, was in the front passenger seat of the car. He suffered several bullet wounds, in arms and in the chest. Dutch troops removed him from the car and tried to administer first aid help; however, Jaloud died from his injuries an hour later. He was 29 years old.

Of all the issues raised in this case, two stand out, one that has already been covered but is unlikely to be effectively, quickly and satisfactorily resolved; the second, a stigmata of an ongoing crisis of trust and discrepancy between power and abuse of power. There will be plenty more of those cases going through the pipes of domestic courtrooms then to Strasbourg; the process will take years, years during which Iraq and its increasing instability, political corruption and chaotic mayhem will reach headlines, then disappear into the oblivion of a mission supposedly accomplished a decade ago. What will remain, however, are the skeletons of a type of warfare technology is seeking to remove us from, and the impossibility of properly enforcing the rule of law, human rights and humanitarian alike, domestic and international, unless a willingness from unconventional lawyers and activist judges push forward the aforementioned test of exceptionality.

Responsibility can’t be asserted without jurisdiction; jurisdiction can’t be declared without rules of engagement; conditions of warfare can’t be publicly debated without governmental transparency.

Checkpoint on Highway 1

The imperialistic nightmare: extraterritorial jurisdiction…

It is absolutely not surprising that the United Kingdom chose to file as a third party in this case, and be represented before the Grand Chamber one more time by James Eadie QC. Three months ago, Eadie had addressed a more or less similar case before the Court, enouncing the very same arguments: there is no such thing as extraterritorial jurisdiction; Article 1 of the Convention is very clear and does not leave much to interpretation; the Bankovic jurisprudence refused to extend jurisdiction beyond the scope of territoriality except in international humanitarian case-law. The Netherlands government found comfort, alliance and support in the presence of the United Kingdom, one of the two nations designed as Occupying Powers (OPs) under the Geneva Conventions and the relevant UNSC resolution covering the occupation of Iraq. Surely, if the United Kingdom felt free to declare they had no jurisdiction over the actions committed in, around, and beyond Camp Bucca, an assisting state such as the Netherlands could never claim to have the control necessary to extend jurisdiction to the actions of their own troops.

But someone had control over Iraq at the time; and the key lies within two documents – the UNSC resolution and the Memorandum of Understanding governing the rules of engagement of Dutch troops at the time. The latter, however, is not available for public use or has even been released to lawyers for the purpose of the litigation at hand. If we consider the arguments submitted by the Netherlands in this case:

Many shades of grey can be distinguished. There are questions of authority and control and how they relate to one another. Jurisdiction has an essentially territorial meaning – extraterritoriality is linked to exceptional circumstances. (…) There is a reluctance to globalisation by legal means of extension of human rights instruments, and this reluctance is still key.

It is absolutely correct that any extension of Article 1 has been met with absolute reluctance, even on the part of the Court itself – the famous Bankovic ruling on the admissibility (2001) that has become a point of reference for any respondent government before the court in cases of counter terrorism operations abroad or military deployment. The extension of human rights instruments – that is, the Convention to which each Council of Europe (CoE) member states is legally bound – should not exceed the frontiers of those states, and it would appear that international armed conflict, be it in the form of invasion or occupation, does not require the ECHR to be implemented in cases of a violation, regardless of its degree of gravity – in this situation, Article 2, the right to life.

In Bankovic v Belgium – and 16 other states, all members of NATO – were accused by the applicants of a violation of Art 2 for the bombing and destruction of Radio Televizije Srbije (Radio-Television Serbia, RTS) in 1999. 16 were killed, and 16 more injured. The Court ruled there was no jurisdictional link between the NATO forces and the survivors or families of the deceased; in a decision that made waves, but is difficult to decipher:  it was said that the public order mission of the Court was for European purposes only; for the observance of the member-states on their own legal space only. The Federal Republic of Yugoslavia, not party to the Convention, characterized the Bankovic complaint as extra-territorial. The Court then assumed that the Convention was not designed to be extended outside of the scope. Perhaps it was not designed to be so; the history of the European Union clearly did not tend to originally evolve away from the absolute concept of national sovereignty, especially since the founding members all had extensive colonial territories and thought of expansion as a prerogative of an empire, not that of the law, much less a law protecting individual, civil and fundamental liberties. What both the United Kingdom and the Netherlands avoided was para. 70 of the Bankovic decision:

(…) the Court found that, bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party was capable of being engaged when as a consequence of military action (lawful or unlawful) it exercised effective control of an area outside its national territory. The obligation to secure, in such an area, the Convention rights and freedoms was found to derive from the fact of such control whether it was exercised directly, through the respondent State’s armed forces, or through a subordinate local administration. The Court concluded that the acts of which the applicant complained were capable of falling within (…) jurisdiction within the meaning of Article 1 of the Convention.

Referring to the Loizidou judgment, the Court engaged liability as a consequence of military action. If the extraterritorial jurisdiction can not be applied unless it falls under exceptional circumstances, and the Court never meant to exercise any of its powers outside of its contracting parties, military action indeed creates the authority and control, and the link between the two, that the Netherlands were initially mentioning in their opening statement as a justification not to extend jurisdiction. The case of war, however, seems to have reached the status of political normalcy for states engaging into armed conflict alongside the UK and the US in their endless war against terror; according to the Netherlands, “the mere presence of Dutch troops is insufficient to establish jurisdiction. Any different decision would go against the existing case law and the balance it represents.” Who said case-law was set in stone? Isn’t it the prerogative of a Court to extend – or, in any case, restrict – the scope of its powers according to the evolution of the events it is meant to characterize and arbitrate?  The Court continues:

In its subsequent Cyprus v. Turkey judgment (cited above), the Court added that since Turkey had such “effective control”, its responsibility could not be confined to the acts of its own agents therein but was engaged by the acts of the local administration which survived by virtue of Turkish support. Turkey’s “jurisdiction” under Article 1 was therefore considered to extend to securing the entire range of substantive Convention rights in northern Cyprus. In sum, the case-law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.

The test of exceptionality hereby follows three components: it needs effective control of the area, as described by the Geneva Convention; control of territory and its inhabitants under occupation; and exercise powers – usually, referring to law enforcement, political administration – under normal governmental authority. The very same test of exceptionality was raised in December before the Grand Chamber and against the United Kingdom in Hassan v United Kingdom, when a former Camp Bucca prisoner was found dead while carrying his UK-issued prison ID tag with him. The United Kingdom having been designated an Occupying Power, it was only a matter of establishing leadership over Camp Bucca. In the case of administrating a whole territory of Iraq, the UNSC Res 1483 says:

Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the “Authority”) ; Noting further that other States that are not occupying powers are working now or in the future may work under the Authority, Welcoming further the willingness of Member States to contribute to stability and security in Iraq by contributing personnel, equipment, and other resources under the Authority (…)

… and governmental transparency

The Netherlands are right in asserting being transferred under the authority of an OP is not an assumption of authority. Being listed as a member of the CPA, as an assisting state, however, clearly implies control of the area where the troops will be located. As of April 2004, the day of the incident, the Netherlands had deployed a contingent of roughly 1,300 troops in south-east Iraq. Operational control was transferred, as they claim, under British command of the SFIR – itself subordinated to the US lead commanders of the CPA in Baghdad. The Netherlands claim their limited authority was restricted to administrative tasks, certainly not those usually carried out by an OP – what the Res. described as follows:

Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future;

This is where everything blurs itself in the line of responsibility, chain of command, and this absolute necessity of proving a jurisdictional link between Jaloud, his car, and the 28 rounds fired by Lt. A. The Netherlands’ rules of engagement, gathered in a Memorandum of Understanding, were never released publicly. The document was not even handed out to the Respondent Government’s counsel in preparation for the hearing. They were not debated in Dutch media or in any democratic sphere. In fact, no one knows exactly what is contained in this Memorandum, which or whose authority were the Dutch troops subordinated to, which laws they believed they were operating under, and who, in fact, were their lead commander. According to the distribution of territorial authority as illustrated above, south-east Iraq, and the province of Al-Muthanna, was under British command. According to their opening statement, the Netherlands operated both under British command and outside of the chain of command, carrying with them the sovereign right of withdrawing troops (again, according to a document that has never been submitted). If these assertions seem to not make much sense, consider the following sentence:

The authority remained with the Dutch authorities. This however does not engage a relationship between the Netherlands and the applicant.

The circumstances in which Dutch troops were deployed in Iraq were “perfectly normal”, the Counsel continued, and troops were never extended coalition powers. It was with a great degree of lucidity that the statement on jurisdiction ended with the statement that such a debate and decision on authority and effective control of the area “would be of great legal importance to included EU states.”

Words of hesitation and apparent confusion litter the statement of the Netherlands: the presence of Dutch troops at the checkpoint would be a “coincidence”; the death of Mr. Jaloud, “unfortunate”; the actions of Lt. A., although openly disproportionate to even the untrained eye, made “under the impression” of being attacked. As the lawyers for the applicant submitted, there are way too many inconsistencies in not only the circumstances surrounding the presence of Dutch troops at the check point, but even more tragically, the investigation that followed. From the autopsy that was carried out without any Dutch official present; a report that was never translated from Arabic, except mere weeks before this hearing; testimonies from ICDC members lost, then suddenly found and exonerating Lt. A. from responsibility. The applicant submitted that the investigation carried out was insufficient; the Netherlands responded that it was impossible to meet regular and domestic standards of criminal inquiry in such a volatile environment. However right he may be in practice, history has proved that the issue of imminent threat in an occupied territory often fuels insurgency more than it quells it. Solatia will only take the occupying powers – or their assisting state – so far in bringing civil society to the side of the troops that claimed to liberate them.

The difficulty lawyers for the applicant faced when trying to get to the bottom of the inquiry is not new. Since the War on Terror, cases brought before the Grand Chamber have been marred with national security exemptions, counter-terrorism human rights derogations, and failure to debate submissions due to classification of documentation. A proper hearing before a supranational court can not be satisfied with mere allegations or half submissions by the Respondent Government that has to report it is not proper nor appropriate for them to divulge the information to the Court. If there is such a deference to the national authority as opposed to the transnational – or supranational, depending on where one stands on the EU – power of the Council of Europe, it is also a matter of respecting the judicial authority as being impartial and empowered with equity and neutrality. Justice is not blind because it doesn’t see politics; justice has been blinded by the politics of never revealing fully the matters of international relations between sovereign states with their own citizens, their own lawyers, their own journalists. In the case of the Netherlands, that pales in comparison to the horrors inflicted by Poland in the Al-Nashiri / Abu-Zubaydah case, and the furious lawyers telling the Court they never had access to documents, it is history bearing heavy over the minds of the lawyers – and of the democratic society they represent. As the opening statement for the applicant stated,

A deployment of Dutch troops in post-war Iraq was a matter of much public domestic debate. Historically, occupation is a very sensitive topic to the Dutch, and the government took a great stance to specify that Dutch troops would not participate in the occupation of Iraq. (…) The authority vested upon the Dutch is contained in a caveat of the Memorandum of Understanding, caveat that the Government did not see fit to share. We thought it would have been important (…) the mandate could have decided of the jurisdiction. Having not shared this information, we believe the Government failed its obligations.

Later, when the Judges questioned both applicant and respondent, the issue of the classification of the MoU was raised. It was not clear to the Court – or anyone else attending the hearing, following the case – who clearly was the commander in the province at the time. If the Dutch authorities were effectively operating outside the chain of command, they would have effective control in and of themselves. If they were however subordinated to an Occupying Power, the responsibility of the Dutch troops would fall within the jurisdiction of the Occupying Power – in this case, the United Kingdom. The last question raised was, in fact, the only one: if the Netherlands were not an authority by themselves and had a chain of command – is the Netherlands claiming that the UK should be the proper respondent in the case? The response from the Netherlands is more telling, perhaps too telling:

I myself do not have the Memorandum of Understanding, despite my requests. It was refused due to levels of confidentiality. The Memorandum was written between the UK and the Netherlands… we do not feel at liberty to make this document available. You can call that a red card holder.

Judicial accountability as a deterrent to peace-keeping operations

In the Hassan v United Kingdom case, James Eadie submitted that the laws of warfare had changed, for “practical reasons”. It seems the practicality of choosing which international legal instrument one is bound to when deploying troops abroad is a severe and slightly perverted interpretation of the law that could be perceived as an attempt to skewer responsibility and accountability; because with jurisdiction, does not simply come the powers of administrating and keeping the peace – comes the duty to abide by the Geneva Conventions and the Hague Regulations. Both bodies, created before World War I, could be conceived as outdated, in the context of the War on Terror, where unilateral use of force is a normalcy and UN resolutions intervene ex post facto. Establishing a long lasting jurisprudence of extending extraterritorial responsibility seems absolutely paramount to the international legal order. The cases of civilian deaths in Iraq between 2003 and 2011 need to be addressed in a way that must be substantial as opposed to symbolic; severe as opposed to casual; and systematic as opposed to sporadic. There is no such thing as strict legality in a war trial; and the complexity of international relations arise in the least desirable moments, which is precisely when the United Kingdom comes to the stand to claim that there shall be no interference of European courts in the matters of Iraq, no matter how many troops deployed over a certain period of time, and no matter the unalienable rights and duties those European states signed up on when creating the Convention.

Three Judges of the Grand Chamber as James Eadie QC prepares to explain why the Court can’t extend extraterritorial jurisdiction. AGAIN.

It had always been the belief of the United Kingdom, and, frankly, the position of many states irrevocably attached to the issue of sovereignty that jurisdiction should never be extended. It seems from Eadie’s frequent appearances in Strasbourg, lately coinciding with Grayling’s outbursts against European interference, that the very fact the Kingdom responds to calls from the Court is already a miracle. When it comes to extraterritorial jurisdiction, it simply can not be. Human rights law maintenance in time of warfare can not, according to Eadie, “expand incrementally from case to case”. But beyond the simple refusal to abide by the rules of the Court in their military operations abroad, Eadie submitted a point that has once surfaced in the Behrami case: human rights law as enounced in the Convention can’t possibly restrict the mission granted by the UNSC under Chapter VII intervention. In this 2007 decision against France, once more in the context of the war in Kosovo, the court made this very important statement (para. 149):

Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UN’s key mission in this field including, as argued by certain parties, with the effective conduct of its operations. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself. This reasoning equally applies to voluntary acts of the respondent States such as the vote of a permanent member of the UNSC in favour of the relevant Chapter VII Resolution and the contribution of troops to the security mission: such acts may not have amounted to obligations flowing from membership of the UN but they remained crucial to the effective fulfilment by the UNSC of its Chapter VII mandate and, consequently, by the UN of its imperative peace and security aim.

Put simply, any mission carried out by EU member states and sanctioned by a UNSC resolution covered by Chapter VII – humanitarian intervention – doesn’t fall within the jurisdiction of the Court. To decide otherwise would be a hindrance to the mission itself, and even go against the wishes of the UN, whose supremacy isn’t questioned at any point. It isn’t question in this case, either. What is important to mention here, as Eadie quotes this paragraph in order to maintain that extraterritorial jurisdiction can’t be applied as it would be contrary to a peacekeeping mission abroad – is the wording. A Chapter VII resolution is not a sanction of unilateral use of force. It does not permit the invasion and semi-permanent or permanent occupation of a state. A Chapter VII resolution is voted and implemented as a peace-keeping mission, to restore security, the rule of law, establish provisional authority pending monitored elections, and progressively reconstitute the sovereign authority of the invaded state. A Chapter VII resolution always, always mentions that each contracting party in the resolution – be it straight OPs per the GCs or assisting states in the case of the CPA – must abide by international law standards.

the division of Iraq under Combined Joint Task Force 7, here in September 2003

Applying extraterritorial jurisdiction in the case of a wrongful death of a civilian during the occupation of Iraq is not a violation of the mission authorized by the Security Council. It is applying the international law standards that civilians are protected persons under the Geneva Convention and any wrongful death occurred should be thoroughly investigated by the respondent state and punished under the relevant criminal authority that has been described in the rules of engagement.

There are no rules of engagement publicly available for review in this case. The government of the Netherlands never released them, never debated its commitment and collaboration with the United Kingdom in the occupation of Iraq. The question of jurisdiction in the province of Al-Muthanna, in which a 29 year old man was shot dead by a Dutch lieutenant for failing to stop at a checkpoint in the middle of the night, will be extremely hard to decide following Article 1 – but following the non-existent rules of a hidden document. What Eadie was claiming, in fact, is that extending jurisdiction of human rights law to a military deployment – even sanctioned by the UN, again, following the invasion, not sanctioning the invasion – would be a deterrent to future peacekeeping missions. Making the public, direct and almost irrevocable decision to extend responsibility to the members of a military coalition for their actions against civilians and property on the ground would make member-states less likely to cooperate in the future. In short, Eadie is stating the following: if we engage responsibility in military actions, no member state will ever submit to the rule of law anymore. The end justifies the means; regardless of the fact that the UNSC Res 1483 never, never granted immunity to any member state of the CPA:

Calls upon all concerned to comply fully with their obligations under international law, including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907;

International law is not suspended regardless of the “principled importance” of the mission carried out by the US and the UK in Iraq, despite Eadie’s claims; to quote one of the judges in the Hassan v United Kingdom hearing, “human rights law is not rhetorical”.

As several cases related to unlawful detention, torture or death occurring in Iraq during the invasion and the occupation phases find their way through the Court, it is important to remember that warfare is not a lawless, chaotic and messy state of affairs. It used to be, at a time when imperialistic thirst was unshackled, when legal accountability was reserved for deserting troops, when martyrdom was enviable, and when power ruled everything, relegating equality, freedom and security to second-level aspirations that would never grant anyone the territory or the money that were asking for. The Geneva Conventions were born out of what a former professor of mine once referred to as “rivers of blood and iron”. Although many of our contemporaries are now decrying the very concept of a “just war”, as they attempted to regulate the course of warfare, it would behoove us to keep in mind that we have regressed and marched backwards to a point where the laws of war are merely words carved into stone for us to feel safe and secure at home, but never actually enforced in the reality of the various battlefields – declared and now more and more often undeclared – around the world. Unless we re-affirm our collective and unequivocal commitment to the laws of war and international humanitarian law – and, of course, international human rights law – the immorality of the rivers of blood and iron will become the non-exceptional circumstance affirmed by the respondent governments in this case. If the occupation of Iraq does not pass the test of exceptionality, we have achieved, with this sorry state of affairs that has not seen an end for the Iraqis, war as political normalcy.

Two things are to take away from this case, that will sadly remain anonymous to most because little ink is shed over assisting states in Iraq; even less is mentioned about the countless daily casualties that we have learned to assume are the regular and casual toll of war. One, that unless we abide by a culture of judicial activism in which the transcendent politics of international cooperation in counter-terrorism and warfare do not trump the rule of law, and the unalienable rights we have worked so hard to enshrine, we will lose more and more rights by the minute, and a culture of secrecy and classification will ensure that we are never vigilant. Two, that accountability and responsibility are never a deterrent in peacebuilding, peacekeeping or humanitarian action. They are not mutually exclusive, and were never meant to be. There is no justice without accountability; there is no liberty without responsibility; and there is definitely no permanent security unless we empower transnational and supranational bodies with the possibility to judge states and the members of their leadership for the actions they have taken in our name. Per the applicant’s counsel:

Jaloud wasn’t suddenly hit by a deadly object falling from the sky, while in his own country, under his own government. He was deliberately shot at, for the reason that he had not timely complied with the orders issued by the Dutch army. (…) Bullets themselves do not create jurisdiction, it is the firing of the bullets that express authority and control; and the responsibility that comes with it.

This is the principled importance.

In remission: Miranda v Home Secretary

David Miranda, the threat to the United Kingdom. In “good faith”

Last August, when David Miranda, Glenn Greenwald’s husband, was arrested at Heathrow, the usual tense climate between investigative reporters and the concept of national security had climaxed. It was chilling. It launched an attack on journalism from the ceiling down – a crushing battle aimed at crippling, alienating, and eventually defeating those who acted in the name of public interest. Despite the little attention it seems to have received, nothing in 2013, in the world of civil rights at least, has sent such a message of fear and willingness to crush any democratic spirit than that moment Guardian journalists were made to destroy their own hard drives under the watchful eyes of GCHQ agents. One can’t help but wonder if this event was perceived as either mundane because we have internalised a surveillance state, or insignificant because the Guardian has been so demonized in the eyes of true blue patriots they deserved their fate. Both assumptions are wrong. Both assumptions should be proven wrong.

The Miranda case has been branded as a landmark situation that gave way and motive for a review of the infamous Schedule 7, outlining the powers of detention granted by the Terrorism Act 2000 (ATCSA). It’s a little more complex. Although the judges believed their application for appeal should be made on grounds that the case was fact-dependent, there are several matters of basic, fundamental principles questioned by the provisions of the ATCSA – and the fact the ATCSA is brought up against journalists, or those aiding journalists – that are not fact-dependent. Because the protection that should be awarded to members of the press has been suspended in the name of counter-terrorism, it begets the question of whether terrorism warrants such suspension, and whether the definitions in play in the ACTSA are applicable ones. Although a review of Schedule 7 is underway at Parliament, the recommendations all made for Schedule 7 review are dependant on the definition of terrorism – Article 40 (1) (b).  An officer is granted discretion to assess a terror threat based on that definition, which is vague and circumstancial. It is the belief of many human rights lawyers having observed the increased use of ATCSA powers to persons usually protected from accusations of criminal activity associated to political dissent that it is 40 (1) (b) that can prove to be problematic.

The powers of detention extended to a terrorist suspect are dangerous. What is just as pervasive and dangerous is that said individual can be considered a terrorist suspect in the first place. Terrorism powers always should be granted better and bigger limitation based on the extensive reach they provide. Before the ruling was due, I had mentioned the following –

UK High Court of Justice

Powers granted under Schedule 7, surveillance and improper purpose

Theresa May prided herself in the fall for accessing the demand of a review of Schedule 7, and this a whole year before the Miranda case. Back then, powers granted under Schedule 7 were already difficult to swallow. Although it took her a couple of paragraphs to re-affirm her commitment to the powers of the ATCSA, she threw a small bone at the human rights community and the basic democratic principles by announcing she would launch a public consultation with internal review. This review is prefaced by a solid 67% of respondents saying that, in 2012, Schedule 7 was already “unfair, too wide-ranging and should be curtailed”. The Home Office identified 12 specific questions ranging from detention to strip searches, delays of interrogation and respect of human rights. Of those 12 questions, the internal review concluded 7 needed amendments or modifications. All amendments in question were aimed at reducing the powers of detention, including the maximum time of detention without charge to go from 9 hours down to 6 hours.

David Miranda was detained for 9 hours.

In November 2013, David Anderson QC, the independent reviewer of UK anti-terrorism legislation, released his own report into Schedule 7. He did not conclude the detention powers, as they were, were excessive; he advised that the suspicion from officers that a given individual may be engaged in acts of terrorism fell within the ATCSA definition of terrorism to grant detention. This is a vicious circle. Per his conclusions,

(a) Detention be permitted only when a senior officer is satisfied that there are grounds for suspecting that the person appears to be a person falling within section 40 (1) (b) and that detention is necessary in order to assist in determining whether he is such a person.

Should this all be still confusing, let’s just give a senior officer discretional powers to extend said detention without charge:

(b) On periodic review, a detention may be extended only when a senior officer remains satisfied that there continue to be grounds for suspecting that the person appears to be a person falling within section 40 (1) (b) and that detention continues to be necessary in order to assist in determining whether he is such a person.

Now, although the internal review did recommend that specific, terrorism-related officers working in police stations or in ports be trained in quickly determine or assess the potential threat of an individual seeking entry or transit on UK territory, it appears that in the case of Miranda, the work was cut out for them by the Secret Service. Paragraph 9 of the Court ruling prove that Miranda was, in fact, under surveillance by both US and UK authorities and the Custom Border Protection Officers (CBPs) had been informed of his transit through Heathrow, and seriously advised to keep him and search him.

The Security Service (…) had undertaken an operation relating to Mr Snowden. They became aware of the claimant’s movements. At 0830 on Thursday 15 August 2013 they briefed Detective Superintendent Stokley of SO15, the Counter Terrorism Command in the Metropolitan Police, the second defendant. On Friday 16 August a Port Circulation Sheet (PCS), a form of document used to provide information to counter-terrorism officers, was issued by the Security Service to the Metropolitan Police and received at the National Ports Office at 2159. On page 2, against a box asking for confirmation “that the purpose of an examination will be to assist in making a determination about whether the person appears to be someone who is or has been concerned in the Commission, Preparation or Instigation of acts of terrorism (CPI)”, the Security Service had entered the words “Not Applicable”. On the same page this was stated:

“Intelligence indicates that MIRANDA is likely to be involved in espionage activity which has the potential to act against the interests of UK national security. We therefore wish to establish the nature of MIRANDA’s activity, assess the risk that MIRANDA poses to UK national security and mitigate as appropriate. We are requesting that you exercise your powers to carry out a ports stop against MIRANDA.”

The Guardian’s Ewen MacAskill, Glenn Greenwald and Laura Poitras, who recently were awarded the George Polk Award for journalism

Through paragraphs 10 and 11 of the decision comes a conversation between the Secret Service and the Met Police, that maybe further intelligence and information was necessary to use Schedule 7 at Heathrow to arrest Miranda. Later, the Secret Service would send a note – redacted, even in the ruling – claiming that Miranda was carrying material between Glenn Greenwald and Laura Poitras; that this material had been provided by Edward Snowden; that it contained information pertaining to GCHQ activities; and that it was damaging to UK national security. But the most important part, and what has caused the arrest, detention, interrogation, what would be at the core of Judge Laws’ ruling, is the Secret Service’s final PCS on August 17th, which reads with a sense of emergency, of fear, of confusion, of absolute necessity to stop the ongoing free-flow of material that was provided to Greenwald. It is frankly frantic, a little obsessive, and shows the absolute scare that public interest journalism creates in governments willingly engaging in wrongdoing:

“We assess that MIRANDA is knowingly carrying material, the release of which would endanger people’s lives. Additionally the disclosure, or threat of disclosure, is designed to influence the government, and is made for the purpose of promoting a political and ideological cause. This therefore falls within the definition of terrorism and as such we request that the subject is examined under Schedule 7.”

Everything you ever needed to know about the UK national security principles and what actively constitutes national security is contained in that one PCS. If the ruling provided any sort of information – besides the acknowledgement that we will touch on later – is that the Secret Service is concerned with protecting national interests, government secrets, and that the furthering of the fundamental rights to press freedom constitutes an act of terrorism that falls within the purview of 40 (1) (b). Thanks to this PCS, we are now all clear on where the Kingdom stands.

Before the ruling emerged today, I wrote about public interest journalism and the fear-mongering propagated by both DNI James Clapper in the US and his lethal allies (*) – Theresa May, Andrew Parker, Chris Grayling, et al: all those endangered lives that Louise Mensch ranted on about do not exist. The only thing that’s endangered is the democratic career of the government officials who engaged into unconstitutional and unlawful actions against their citizens and foreign nationals in the name of the threat later revealed to be inexistent or a simple excuse. It is not because the Secret Service claims that Miranda falls within 40 (1) (b) that it effectively does, but the Met Police can’t contradict a PCS. In fact, officers may not even be thoroughly informed of the true motives behind the PCS (intelligence firewall).

Once again, one of the many pitfalls of Schedule 7 is that it exists in itself to ascertain whether the person falls under 40 (1) (b). There is no necessity for the officers to assess whether the person does before launching a Schedule 7 provision. In this case, due to the PCS, even with little knowledge of the content, there was a suspicion that Miranda would fall within Schedule 7 suspicion…  but the PCS had led them on already.

Glenn Greenwald and David Miranda, after his detention at Heathrow

Disproportionality of a Schedule 7 inspection

The question of proportionality can not exist in a vacuum; and it was Ryder’s submission as counsel for the claimant to refer to previous jurisprudence on what exactly should Schedule 7 be measured against in order to assess whether it was disproportionate or justified. In Bank Mellat v Her Majesty’s Treasury (2013), Lord Sumption, usually not one to rule in favor of human rights law or apprehend a counter-terrorism provision or in an international law context, decided (quoted in para. 39):

“The question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to that objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regards to these matters and the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.”

In the Miranda case, all of this can be easily assessed if we remove the idea of a national security protection from its political context and weigh a Schedule 7 provision against the husband of a journalist transiting through an airport. Is the objective of the Secret Service sufficiently important to limit the fundamental right of freedom of the press? Not if this press is acting in the public interest (strike one). Is the situation rationally connected to the objective? The increasing issue of national security not in protection of citizenry or territorial integrity but rather in protection of state interest does not constitute a rational motive, but rather a disproportionate use of force to protect the state (strike two). Could a less intrusive method have been used? In the case of WikiLeaks material and/or Snowden files, both revolutionary in the approach of whistleblowing in the digital age, I once argued that the Computer Misuse Act could have been useful without calling on to espionage or terrorism charges (strike three). Has a fair balance been struck? If the balance is achieved between the severity of the treatment granted to David Miranda and the protection of the United Kingdom, there is no such thing. It is a complex, heavily funded, internationally supported and executively connected state apparatus against a foreign national not even seeking entry or haven into the territory. Miranda was stuck in-between his departure city (Berlin) and his home (Rio de Janeiro). He was trapped. Is there a balance? Would Miranda alone – and the files he was carrying – bring down the Empire? (strike four).

In case one argues against my vision of Lord Sumption’s criteria number 1 and 2, on the national security imperative not protecting from an internal or international threat of violence against the integrity of the nation – that is, the state and the population, not the government – D/Supt Stokley’s testimony of his reaction upon receiving the PCS should clarify the situation of what the national security imperative actually meant in the Miranda case; it meant that it was handed out to an officer that simply did not make the distinction, and was not properly informed of the meaning of intelligence operations. The decision to call on a Schedule 7 detention was made by an agent of the Crown who was unaware of the activities of other agents of the Crown. I find this testimony disturbing in the light of the realities of GCHQ / PRISM activities (para. 37):

It appeared to me on the basis of what I knew about the stolen material, that it could be used to endanger life and cause harm to the members of the public… It was very clear in my mind that this action was not being executed as a means to prevent political embarrassment in the UK… I believed that the information in the claimant’s possession could potentially compromise the UK’s ability to monitor terrorist networks, posing a threat to the safety of the public… In particular, I considered that the release of information about PRISM technology into the public domain was of use to terrorists. My understanding of the technology from material in the public domain is that it enables security and intelligence services to monitor email traffic. Accordingly, I considered that if nothing was done to try to prevent further damaging disclosures which could directly benefit terrorists, the MPs and I personally would be failing in our obligation to prevent the loss of life, safeguard the public to (sic) prevent and detect crime.

Once again, it has been made abundantly clear at a Senate Intelligence Committee hearing in Washington, DC regarding NSA activities and requesting testimony from DNI James Clapper that, in fact, NSA activities barely amounted to truly specific counter-terrorism measures. An article in The Guardian on January 14, 2014 written by Spencer Ackerman quotes Michael Morrell, a former CIA deputy director:

Morrell added that the bulk collection of domestic phone data “has not played a significant role in preventing any terrorist attacks to this point,” further undercutting a major rationale offered by the NSA since the Guardian first revealed the bulk phone-data collection in June, thanks to leaks by Edward Snowden.

Just like Lord Justice Laws, I find no reason not to believe Stokley was genuine in giving this testimony. He just appears to not have been informed, or been purposely misinformed.

a terrorist Washington Metro bus

Article 10 compliance

Again, back in July, I had denounced a violation of Article 10, and would still to this day recommend a review by Strasbourg. But the current climate between the United Kingdom and the ECtHR is tense, to say the least, and asking for a judicial review in a British domestic court based on ECHR compliance is somewhat defiant. This shouldn’t be an issue, however. As of the date of this ruling, the United Kingdom is still party to the ECHR, and is still required to abide by its standards. Just like any state wishing to assert its national principles as being, if not superior, at least equal to supranational or international law, it all lies within a matter of interpretation. In this case, while Mr Ryder relied heavily on the fundamental principles of the freedom of the press in the handling of David Miranda and his relation to Glenn Greenwald, Laura Poitras and Edward Snowden, the Judges saw fit not to weigh the use of the ACTSA against the ECHR, but to assume, pre-emptively, that the law of the land was already ECHR compliant (which it mostly isn’t) and that said domestic law was not to establish fundamental freedoms, see; those fundamental freedoms exist by sole virtue of being on British soil, and the law only seeks to establish the exception. Referring to Attorney General v Guardian Newspapers (1990), quoting Lord Goff in para. 41:

“I can see no inconsistency between English law on this subject and Article 10 (…) The only difference is that, whereas Article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.”

I have no words.

To understand where the concept of damaging disclosure comes from, we must go back to first the definition of terrorism under the ACTSA, and the already existing but not terrorism related Official Secrets Act of 1989. Per the ACTSA, as mentioned early in the ruling, terrorism constitutes the use or threat of action where –

(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it-

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

Under this very, very vague definition of terrorism, anything that is done from group acts of political dissent to actual violence against the population can constitute terrorism; it is too broad a spectrum to consider a journalist on the same scale as a suicide bomber entering a busy Guildford pub on a Friday night. The proper law to be applied here is the OSA 1989, on the information resulting from unauthorized disclosures – concerning even journalists and editors. It is an offence to disclose material:

(b) where the material was acquired as a result of an unauthorized disclosure at some stage by a Crown servant or government contractor (5 (1) (a) (i))

(c) where the material was entrusted to the recipient in confidence, or with a reasonable expectation of confidence, by a Crown servant or government contractor (5 (1) (a) (ii))

(d) where the material was acquired as a result of an unauthorized disclosure at some stage by a person to whom it had been entrusted as in (c) above.

Edward Snowden working for the NSA – a branch of the US government, as a US citizen, pertaining to US information – can only qualify under (d) as GCHQ material and information was relayed to the NSA. But the NSA files constituted classified information. They were handed to Edward Snowden in his capacity of cleared government contractor. The concept of damaging closure under the law can apply, and could potentially restrict the application of Article 10 (2), which only limits freedom of the press in line with the Johannesburg Principles … except for that small line,

preventing the disclosure of information received in confidence

Greenwald with two terrorist dogs

This is where the notion of “pressing need” of the public interest comes into view, in Sunday Times v United Kingdom (1979). There is now a need, in the current political context, to update the current public interest jurisprudence, that has made a certain headway in the protection of press freedom against disclosure that was found non-damaging to the government, or could easily be made in the name of public interest on health risks, armed conflict, all concepts easily provable and publishable – but in this era of constant classification of all possible information relative to an extremely wide range of governmental activity at home and abroad, there is no assessing the public interest in a direct political context. This is a context in which PIIs are requested in Court of Appeals. This is a context in which surveillance is authorized by secret courts. This is a context in which Senate reports can not be disclosed even after repeated requests for obtention. It is maddening. There is nothing that has fallen into the public domain that could help a claimant assert their position that they acted in the public interest; unless there is an effort, on the part of the public, and on the part of their representatives, to see the confidentiality as the issue in itself, a red flag for the possible commitment of abuses. Transparency is an extremely perfected tool of accountability. It is, in fact, the only one.

If the High Court believes that in dismissing the appeal of David Miranda, it is ECHR compliant, it is a complete fallacy. Only the ECtHR is apt in 2014 to decide whether the confidential disclosure provision of Article 10 (2) should be upgraded and updated through landmark jurisprudence in order to weigh the damage caused by the disclosure against the notion that it served the public – and the international – interest. Assessing the compliance to fundamental human rights in a court that had already granted an anti-terrorism provision against a journalist does not provide the proper safeguards for the true judicial review of human rights.

The Human Rights Centre at Durham Law, chaired by the wonderful Fiona De Londras, with whom I have discussed a counter-terrorism judicial review, has already tackled the issue of Schedule 7 . Although their review concentrated on the impact of counter-terrorism policies on the Muslim community, their requests for change on Schedule 7 find an echo: they call for increased transparency and accountability, which has been severely lacking in this decision; and a radical demand for the length of examination to be reduced to two hours, in order to curtail the “detrimental effect” a prolonged detention can have on the individual. The intimidating effect such law enforcement powers can have on a person – especially one that is isolated from a group as they travel or transit – can not be stressed enough; and it is at the very core of counter-terrorism powers to act as a powerful deterrent. It is however proportionately damaging when the individual in custody meets no criteria of reasonable suspicion.

seriously, get ready.

When it comes to journalistic rights, where are the legal safeguards that can be used to protect them against discretionary powers and media control? The High Court debated another ECtHR case, Gillan and Quinton v United Kingdom (2010), in which the supranational court absolutely refused to let fundamental rights be curtailed through simple, personal, or guided – as was the role of the PCS in this case – decision making.

For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise

Still Article 10 compliant, Lord Justice Laws?

In another case, Sanoma Utigevers BV v Netherlands (2010), the Court even assessed the long-term damage it could do to a journalist, a newspaper, and their relation to sources, credibility, and transparency if there were to be interference with executive authority:

The Court notes that orders to disclose sources potentially have a detrimental impact, not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on members of the public, who have an interest in receiving information imparted through anonymous sources. (…) First and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body. The principle that in cases concerning protection of journalistic sources “the full picture should be before the court” was highlighted in one of the earliest cases of this nature (…). The requisite review should be carried out by a body separate from the executive and other interested parties, invested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources’ identity if it does not.

Despite this, Mr Kovats, representing the Government, submitted that the ECHR had “not developed an absolute rule of prior judicial scrutiny” on the protection of private interest journalism. (For the sake of the readers, there are two more decisions I did not see necessary to include). On para. 88 of the ruling, the Lord Justice found that indeed, they could not base themselves on existing ECtHR jurisprudence to establish a fundamental rule and model for them to follow.

Rented world

Justice Ouseley did not encumber himself with grand statements. He did not try to contest anything; Justice Openshaw was barely existent. Ouseley just maintained the principles of 40 (1) (b) and supported that an officer, in order to launch Schedule 7 provisions, just needed to “act in good faith”. In what good faith exactly was D/Supt Stokley? Was position was he in, between uncertainty on his government’s motives and the increased pressure of several PCS sent his way? How could be possibly make the decision, without any sort of independent judicial scrutiny, that his actions were lawfully warranted? The truth is, good faith is not a test of good conscience. It is not a test of good morals, or a litmus test for someone’s willingness to stand up to abuses of power. Good faith is what it is. It is fleeting, unreliable, flaky, and perfectly serves the interests of those who benefit, use and abuse the laws they made – and had passed in good faith.

A legislative review of the ATCSA is now necessary given the judicial deference of the High Court to the executive. This is hardly a new concept in debating anti-terrorism law in the UK. In 2004, Lord Hoffmann, then on record in A v Secretary of State for the Home Department, had already challenged the concept of detention without charge or trial against fundamental liberties he believed were enshrined in British law:

The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such victory.

(*) for those getting the reference: I stand by it.

[ ref.: I get nervous everytime I try to talk in front of a big crowd, a pretty girl, or the police ]

Judicial activism and the right to truth: al-Hawsawi and Lithuania

Mustafa al-Hawsawi, 2012

Last month, an extremely important case hearing took place in Strasbourg, at the European Court of Human Rights (ECtHR). It detailed the collusion of the government of Poland with the CIA in creating a secret prison on its territory, in which prisoners were detained, interrogated, tortured, then shipped to the United States on unchartered flights before being detained again at the horrific naval base of Guantanamo Bay. The worst illustration of a lethal EU-US partnership in the so-called War on Terror was finally exposed, after much obstacles were removed. Lack of transparency, hyperclassification, judicial deference, protection of “vital foreign interests”, and the usual disdain for the basic fundamental rights of terror suspects have led to a considerable delay in trying the Guantanamo Bay inmates, but also to broadcast in a court of law the crimes committed by the nation states and their agents. In the fight against terrorism, counter-terrorism is also on trial.

The establishment of CIA black sites on European soil has been a profound source of shame, a delicate diplomatic issue. Yet a comprehensive document dating back to 2006, the Marty Report, commissioned by the European Parliament to investigate and assess the extent of member-states collaborating with the CIA , brought to light how massive the scale of cooperation has been. If the case of Poland has become a textbook situation for collusion –  from paying airport employees in cash to hide departing flights to the US, to refusing access to classified documentation to defence lawyers – it is important to keep in mind it is not an isolated situation. This week, Lithuania has managed to score a victory in its judicial battle within its own domestic courts, without the help of Strasbourg, in a case that highlights two fundamental difficulties and hurdles in the prosecution of the CIA torture program: not only had the Lithuanian prosecutor refused, twice,  to open an investigation into the prison located in the small village of Antaviliai, but all the information used to re-open the case was not governmental documentation at all – it was journalistic investigation made public that had allowed to provide new information.

Mustafa Al-Hawsawi is a Saudi national, currently detained in Guantanamo Bay as a high value detainee and faces trial by a military commission for his role as a financial backer of the 9/11 attack. He was captured in 2003 in Rawalpindi, Pakistan. According to him, he was then transferred to Lithuania where he was handed to US authorities, subjected to torture and disappeared – he would have remained in the secret prison for two whole years, between 2004 and 2006. It’s only then, in September 2006, that US officials formally acknowledged his detention at Guantanamo Bay. As a high-value detainee, Al-Hawsawi was at a much higher risk of torture than any other inmate, according to a report by the ICRC; later, Ben Emmerson, the UN Special Rapporteur on human rights while countering terrorism – who filed as a third party in the Abu Zubaydah v Poland case – reported, in 2013, that the situation of CIA black sites and the practice of extraordinary rendition for terror suspects involved 54 nation states total, from Lithuania to Morocco and from Poland to Thailand.

The forest on the road from Vilnius to Antaviliai, Lithuania

Thanks to investigative journalist Jason Leopold, we know much more about the arrest, disappearance, detention and torture of Abu Zubaydah than we could have ever hope to find if we had followed the often blocked, often stonewalled round of a traditional legal investigation. In the case of Al-Hawsawi, the road was paved with ill-intentions, over a five-year period: in 2009, an initial investigation into the case was made thanks to a report by ABC news, yet charges were dropped seemingly due to lack of evidence. Back then, Defense Minister Rasa Junkeviciene had released this statement:

“Prosecutors need facts. This is how I understand their decision. One shouldn’t forget that this is not only a Lithuanian issue, and if other states fail to give necessary information, or people who know something also don’t want to give information, then in fact it’s pretty hard to say something.”

Although this sounds logical and a fair assessment of how charges could be dropped in a case of serious violations of international law, this highlights the difficulty to access information when so much redaction, red tape or complete classification of material can not be accessible through the classic and regular means of transfer of information in a transnational case. It was obvious that due to the lack of compliance displayed by the United States at the time, further investigation into the lost two years of Al-Hawsawi’s life would lead to empty boxes, unaccessible documentation, or even possibly a request not to look further into this case. However, thanks to the ABC News report, the Lithuanian Parliament created a committee tasked with investigating the alleged CIA black site. And they found one. In fact, they found two. But those were empty, and there was absolutely no written trace, documentation, or evidence made available to them that any prisoners under any authority had been brought to those sites.

Former president Valdus Adamkus and former prime minister Algirdas Brazauskas, the executive authority in place at the time, denied any allegations. The investigation, which came to a screeching halt in 2011, had however unearthed some pretty disturbing evidence, that, linked to other similar cases of detention and torture at CIA black sites, could determine a pretty serious pattern of corrupting local officials, building sites in remote rural areas, and circumventing airport rules for flights to depart and land unsuspected. According to the Prime Minister, who took part in the committee:

The committee also said that five airplanes “linked to the CIA” landed in Vilnius and Palanga airports from 2002-2005, and on at least two occasions border procedures were bypassed with the help of high-ranking Lithuanian State Security officials.

As I wrote in December following the Abu Zubaydah hearing, which I attended, the facts of the case soberly enunciated by the lead counsel, Ms. Singh, illustrated one thing – that it would have been impossible for the CIA to have operated in Poland without national officials knowing about the site. In fact, as it was said then – “not only should Poland know, but Poland did know.” Ms. Singh recounts the different steps taken into the detention and rendition of Abu Zubaydah:

Singh insisted that Poland was not only guilty of facilitating the detention of Al-Nashiri, but also to actively cover-up US rendition flights, and not act under the law when they knowingly assisted the torture of the applicants. Payment of fees to CIA officials, extra bonuses in cash granted to Polish officials and airport workers who assisted in the cover up and departure of rendition flights  have all been documented by what the counsel asserted were credible sources, while Poland carried out claiming that bias from witnesses and anonymity of testimonies made them, apparently, unreceivable. Singh added, in a moment that sent a chill down the audience’s spine, that there had even been agreements between Polish and US officials as to the procedure to adopt should a prisoner die during the detention.

al-Hawsawi at his arraignment in 2008. (c) Janet Hamlin

If Poland appeared to have maintained a political facade since the case was first brought to its attention in 2008, things were not sailing smooth with Lithuania: the Foreign Minister resigned in 2010 over the black site investigation. Back then, President Grybauskaite had publicly acknowledged she knew about the presence of CIA black sites in the country, but following the Parliament report lacking information regarding prisoners, their identity, and travel dates to the prison, Usackas, then Foreign Minister, strongly dismissed all allegations that any torture site, CIA-operated or otherwise, had detained prisoners. Grybauskaite said she had lost trust in the members of her government at the time, and asked her Prime Minister to dismiss Usackas. Usackas, in turn, resigned from his position.

In 2011, Amnesty International obtained information that was relevant to the case and urged Lithuania to re-open an investigation into the secret prison. The claim made during the Abu Zubaydah hearing that an investigation into collaboration with the CIA was “politically inconvenient” echoes the case of Lithuania. It appears that the Parliament report should have consisted in enough evidence to either admit or dismiss the case in court. Since the report could neither assess the presence of prisoners nor the knowledge of executive officials at the time, counsel for Al-Hawsawi relied on investigative missions and victims’ testimonies to provide new information to the Court. The admissibility of this evidence was contested by the Prosecutor. In Poland, lawyers for the government alleged that media publicity and “interference” (sic) with the investigation had made it difficult to carry on in what they believe would be a consistent and objective manner; that NGOs were pressing an agenda on Poland to prosecute human rights violations they weren’t sure existed. The issue of transparency and the obtention of material outside the realm of the legislative inquiry or the executive’s agreement to disclosure is yet another pattern in the prosecution of CIA crimes. Disclosures, both prosecutors argued, are premature, and affect the course of the inquiry by being influential.

They’re influential because they expose the failure of the authority to comply with the judicial inquiry.

In the case of Lithuania, however, the prosecution failed short of upholding the important role of journalistic investigation and obtention of victims in the care of human rights-focused organisations. Says Joe Margulies, a professor of law at Northwestern and counsel for one of the victims, said in 2011:

“[t]he Prosecutor is trying to deflect blame for the failure of his investigation onto NGOs and the media. It’s ironic that an official investigation into a secret torture facility should claim to be thwarted because the media is insufficiently transparent.”

In September of last year, things moved at an incredibly fast pace. Basing their evidence on publicly available information such as EU Parliament reports, flight data gathered by NGOs Reprieve and REDRESS, the counsels submitted a new complaint calling for a new investigation into the detention of Al-Hawsawi. The complaint explained that a thorough and effective investigation had to be made to “secure evidence, seek clarification, seek urgent preservation and disclosure of all relevant evidence, and identify all officials involved in the alleged violations with a view of ensuring they are prosecuted.”

Ben Emmerson, QC

The importance and effect of publicly available information and thorough disclosure could not be stressed enough in this case. The similar that has emerged against Poland will pave the way for those that will surely follow. Ben Emmerson had re-affirmed his commitment to the right to truth as a universal human right and a cornerstone of the legal commitments binding on all member-states not just at the Council of Europe, but at the United Nations. From our piece on Abu-Zubaydah, again:

“the right to truth is collective. Information is essential to a democratic system – in the context of human rights violations, there needs to be a clarification of the circumstances, of context, of policies, and of the institutional failures that let those happen in order to restore confidence in the system. The right to know what happened is fundamental for participatory decision-making in society.” It may appear counter-intuitive, Emmerson continued, “to conventional lawyers – but once it is recognized, every individual is entitled to invoke that right.”

The month following the filing, the Prosecutor informed both NGOs that he refused to launch an investigation. They immediately appealed his decision. The EU Parliament in Strasbourg adopted a resolution on October 10, 2013 urging Lithuania to re-open an investigation into CIA black sites, in regards to 4 cases already pending at the ECtHR, and a fifth application made in a domestic court in Italy:

whereas Parliament has condemned the US-led CIA rendition and secret detention programmes involving multiple human rights violations, including unlawful and arbitrary detention, torture and other ill-treatment, violations of the non-refoulement principle, and enforced disappearance through the use of European airspace and territory by the CIA; whereas Parliament has repeatedly called for full investigations into the collaboration of national governments and agencies with the CIA programmes;

whereas the Lithuanian authorities have reiterated their commitment to reopening the criminal investigation into Lithuania’s involvement in the CIA programme if new elements emerge, but still have not done so;

Reiterates its call on those Member States which have not fulfilled their positive obligation to conduct independent and effective inquiries to investigate human rights violations, taking into account all the new evidence that has come to light, and to disclose all necessary information on all suspect planes associated with the CIA and their territory; calls in particular on the Member States to investigate whether operations have taken place whereby people have been held under the CIA programme in secret facilities on their territory; calls on the Member States concerned (France, Italy, Lithuania, Poland, Romania and Sweden) to respond to the letters sent by the UN Special Procedures;

In this staunchly strong-worded resolution, which urges member states to launch thorough and detailed investigations from government records to phone records, and even forensic investigations at the prison sites themselves, the EU Parliament follows a trend of transparency regarding the collaboration with CIA of EU member states, and has called on every member states not to just comply with recommendations and requests of the ECtHR, but also those made at the UN. The practice of rendition and black sites by the CIA is not an American concern; it is a worldwide concern, that must be addressed by all member states.
In spite of this call, the appeal was just as quickly dismissed.  Yet another one was made, in a remarkable show of consistency and perseverance in the pursuit of truth and justice – and this time, the Vilnius Regional Court upheld the demand for an investigation, and the case is now re-opened. The Regional Court claimed that previous dismissal by the Prosecutor General had been “groundless”.  Julia Hall, Amnesty International’s expert on counter-terrorism and human rights, was justifiably and understandably delighted with the news. The persistence of the counsel for Al-Hawsawi must be commanded. In a statement released shortly following the decision of the Vilnius Regional Court,
“The Lithuanian government and Prosecutor General must now open a full and effective investigation into Mustafa al-Hawsawi’s claims and ensure that any other individuals who have alleged that they were held in secret CIA detention there are afforded the same right.”
As of today, investigative journalist Jason Leopold, whose thorough body of work includes the obtention and publication of the diaries of Abu-Zubaydah, clearly detailing his arrest, detention, and torture, has filed a Freedom of Information Act (FOIA) lawsuit to obtain a copy of the Senate Intelligence Committee’s torture report and CIA activities, chaired by Senator Dianne Feinstein. This is the exact same report that Ben Emmerson asked to be released in this UN report from March 1, 2013; a situation he called “a pressing concern”.  After Leopold’s amended claim, a response came, a peculiar and unusual one: his request was denied; the Senator has “full control” over the report and its hypothetical release. The Court argued it had no jurisdiction over Leopold’s claim. The Senate’s torture report will not be released anytime soon.

Al-Hawsawi is still detained in Guantanamo. NGO REDRESS, represented pro-bono in the case, filed a motion on October 17, 2013 to submit against the classification regime blocking them from accepting complaints to third countries, hindering the investigations in the case, which amounts to a violation of his right to a fair trial. On November 27, 2013, the military judge denied the motion.