Unpacking the remarkable witness statement of Johnny Mercer – a closer look at the extraordinary evidence put before the Afghan war crimes tribunal

The curious incident of the Afghanistan war crimes statutory inquiry being set up

What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers

15th December 2023

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Those criticising human rights law and lawyers often shy away from spelling out the substance of a particular right

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You may or may not remember Abu Qatada and how he once featured in British politics.

About ten or so years ago, he was the Rwanda policy of his time.

The British government under both Labour and then the coalition of Conservatives and Liberal Democrats wanted to deport him to Jordan.

But the pesky human rights lawyers and pesky human rights judges and pesky human rights courts would not let this deportation happen.

And how the politicians and the media fumed.

The headlines seem somewhat familiar:

But what was missing from almost all the news coverage and political discussion was the actual reason why human rights law was preventing the deportation of Abu Qatada.

And that reason featured an ugly word, a word which politicians and the media of the United Kingdom like to avoid.

That word was torture.

In particular, in this case, whether it was open for a person to face legal proceedings where the evidence had been obtained by torture.

This meant that if you wanted to deport Abu Qatada by withdrawing from the European Convention on Human Rights (ECHR) what you were really saying was that it was fine for a person to face criminal charges based on evidence gained by torture.

Of course, that is not what was being said: what was being blamed were the pesky human rights lawyers and pesky human rights judges and pesky human rights courts.

But all the pesky human rights lawyers and pesky human rights judges and pesky human rights courts in the world can do little or nothing unless there is an actual right being infringed.

In the end the United Kingdom resolved the problem not by breaking human rights law or withdrawing from the ECHR, but by negotiating a treaty with Jordan where it was agreed that torture-gained evidence would not be used:

Abu Qatada was deported not because then Home Secretary Theresa May stood up to the pesky human rights law, but because she and the United Kingdom government complied with human rights law.

And what then happened?

Without being able to rely on torture-gained evidence, Abu Qatada was cleared in Jordan of the criminal charges he faced:

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Ten years or so later, we are repeating the same sort of story.

The pesky human rights lawyers and pesky human rights judges and pesky human rights courts are stopping the government implementing the Rwanda scheme.

But, as with Abu Qatada, most (if not all) of those upset by this non-implementation leave unsaid the actual substantial right at issue.

The principle of non-refoulement means that an asylum-seeker should not be returned (or otherwise removed) to a country where their human rights will be violated.

As the Supreme Court set out in the recent appeal judgment:

Those in favour of the Rwanda scheme do not say (aloud) that they actually want asylum-seekers to end up in places where their lives and freedoms will be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.

Just as those in favour of Abu Qatada’s deportation did not say (aloud) that they wanted a person to face charges based on torture-gained evidence.

But in both cases that is the necessary – inescapable – implication of their position.

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Sometimes, of course, when it suits, those opposed to human rights law will happily spell out the substance of their grievance: take prisoner votes, for example.

In that example, both the substance of the right and pesky human rights lawyers and judges and pesky human rights courts could be attacked, and were.

But even with prisoner votes, the underlying problem was resolved by political negotiation and case law rather than defiance:

Again: reform and compliance, rather than confrontation.

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Unlike the prisoner votes issue, however, those in favour of the Rwanda scheme do not want to spell out the underlying human rights issue.

And that omission is – or should be – a tell.

It tells us that those wanting to rid us of human rights law do not want to address why there is a human rights issue at stake.

They want to tell you the tale of pesky human rights lawyers and judges and of pesky human rights courts as being a political problem in and of itself.

No doubt many human rights lawyers and judges are irksome, but it is only possible for them to be obstructive when there is a fundamental right at stake in a concrete case.

And, as with Abu Qatada and prisoner votes, such obstructions can be resolved by, well, politics: reform, negotiation, compliance.

You know: the sort of things which politicians are supposed to do, when they are not blaming human rights law instead.

Using ugly situations as the means to attack human rights law indicates that there is something else going on.

It shows that what is really being clamoured for is for brute executive might to be allowed, despite the violations of rights in individual cases.

But that bit is usually left unsaid.

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How the campaign to stop the United Kingdom government from making it more difficult to prosecute war crimes was won

16th December 2022

Sometimes legal things do not always end badly.

Two years ago, in 2020, I did a video for the Financial Times on how the United Kingdom government was then making it more difficult for former United Kingdom service personnel to be prosecuted for war crimes.

The government was in 2020-21 using a Bill to make it more difficult for any historic civil or criminal legal action to be brought against former service personnel and – for some reason – torture and war crimes would be among those offences that would be made more difficult to prosecute.

Whatever that reason was, it was not a good reason.

There are certain offences so grave that there should not be formal or effective immunity for those who commit those crimes.

And this was not about battlefield or front line operations, but about the treatment of civilians or captives.

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Many – including serving and former military personnel – were deeply unhappy with this proposed immunity.

And the fine people at Freedom from Torture and at other campaign groups put together an impressive and persuasive campaign against the proposed legislation:

The pressure mounted, and the Bill’s progress through Parliament was getting trickier.

And then, in April 2021, the government capitulated:

And so the Bill passed into law with the following exemptions:

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Two years later, as this blog set out yesterday, a full statutory inquiry has now been announced into illegal actions by service personnel in Afghanistan,

For such an inquiry to be announced there must be some significant prima facie evidence which has come to light, even if that evidence is not conclusive about any wrongdoing.

Yet just two years ago, the United Kingdom government was anxiously seeking to legislate so as to make it far more practically difficult for any historic war crimes to be prosecuted.

Thanks to the campaigners at Freedom from Torture and elsewhere, that legislative proposal was checked.

As the post on this blog also averred yesterday, it is difficult – legally, politically, culturally – for our armed services (and security services and police services) to ever be held to account for possible wrongdoing.

And the fact that there is sufficient information now available to trigger a full statutory inquiry (and this can be said without prejudice to that inquiry’s conclusions) means that those who campaigned against the exemption for war crimes were entirely right to do so.

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Why the inquiry announced into potential war crimes is interesting – very interesting

15th December 2022

Now this is something interesting.

Very interesting.

As reported by Joshua Rozenberg, a senior judge has been appointed to head a full statutory inquiry to “investigate into and report on alleged unlawful activity by British armed forces in their conduct of deliberate detention operations (DDO) in Afghanistan during the period mid-2010 to mid-2013”.

The terms of reference, which should be read carefully, are here.

There are usually formidable barriers to any such investigation taking place – legal, political, and cultural.

Of these, the cultural barrier is always the hardest to clear.

Any allegation of wrongdoing by our armed forces – and also our security and police forces – is usually first met by denialism: we are the goodies, and these things would not be done by us.

Then there is derision: how dare you criticise those in the battlefield and on the front line from the comfort of your armchairs.

(This response is often deployed even when the alleged wrongdoing is far away from the battlefield or the front line, and is in respect of the treatment of captive non-combatants and civilians.)

Next will come the misdirections: counter allegations and smears about ambulance-chasing lawyers and compensation-seeking clients.

(And, indeed, there can be bad lawyers, just as there can be bad soldiers and bad police officers and security operatives, for there is good and bad in every profession – it is just that some professions are more accepting of this possibility.)

Once these barriers of denial, derision and misdirection are cleared, and the facts and evidence are incontestable, then there will come the shrugs of “so what?” and the assertions of moral equivalence.

Such things do not matter, we will be told, and everyone does it.

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What there will rarely be is anyone actually being held properly to account.

The cultural presumption against any wrongdoing by our armed forces – and by our security and police forces – is so powerful that they hardly need any formal legal immunity.

But.

Something is up here which means the government is not even attempting to deploy denial, derision or misdirection.

Maybe the government knows that such things will not wash here.

The government has instead gone to appointing a highly-regarded judge with an outstanding reputation and given him the strongest possible legal powers.

This would not be done lightly.

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This inquiry will be worth watching carefully.

Perhaps nothing is afoot.

Perhaps there is nothing to see here.

But for some reason the government does not think that denial, derision or misdirection will be enough for disposing of this matter.

So this inquiry is interesting.

Very interesting.

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POSTSCRIPT – 16th December 2022

 

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These law and policy posts are also crossposted on my new “law and lore” Substack.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

Who watches the watchmen?

Summer Solstice 2022

Over at Al Jazeera – where I am pleased to write posts from a liberal constitutionalist perspective – I have written about what the Lord Geidt resignation tells us about British politics.

Somewhat flatteringly, that post has been chosen as a ‘best column’ by The Week magazine:

From a personal perspective, the post is one of very few I have written for the mainstream media with which I am happy.

(One day I will get the hang of writing paragraphs with more than one sentence.)

On the back of that Al Jazeera post I thought I would add here some thoughts about constitutionalism and absolute power.

For, as Lord Acton famously once said (and to which I allude in the Al Jazeera post), power tends to corrupt and absolute power corrupts absolutely.

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One problem with many – if not most – proposed or imagined political systems is that there is little or nothing to check or balance those who will have the most power under that system.

The hope is presumably that those with the most power will be selfless patriots – good kings, good chaps, and so on.

But, of course, what will tend to happen is that those with power will be corrupted, and those with absolute power will be corrupted absolutely.

And not just corrupted in a narrow financial sense, but in the broader sense of becoming debased.

In this way Orwell’s pigs in Animal Farm may be a more realistic guide to what happens with sustained one party control than the focused O’Brien in Nineteen Eighty-four.

Alan Moore – who I mention expressly in the Al Jazeera post – has repeatedly shown in his stories what can happen when individuals get unchecked power.

In Watchmen – there is a character with absolute superpowers who goes quite mad, a character with immense wealth who becomes immensely destructive, and a character with complete government protection who does whatever he wants to whoever he wants.

And these are the supposed good guys – and none of them is the supposedly unhinged one, Rorschach.

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Switching from imagined communities to historical examples, there are actually few examples of that most peculiar figure ‘the enlightened despot’.

What we do have are despots with good P.R. and gullible historians.

For if a leader is ‘enlightened’, they do not need to be a despot.

Even the supposed good guys of the modern age – the British – have a wretched record if you look closely enough – for example in Kenya, in Northern Ireland, and in Afghanistan and Iraq.

The documented evidence of torture and war crimes by the British cannot be denied, but few realise or care.

For that is what happens when you have good P.R. and gullible historians.

Even the popular comedy meme about ‘Are we the bad guys?’ is dressed in foreign uniforms.

But corruption – in both its narrow and broad sense – is not just about what happens to foreigners.

It can happen in any polity – and with any rulers, if they believe they can get away with it.

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That is why any political system which confers great power on any individuals is suspect.

Yes, you may have a selfless patriot as an initial ruler, but what do you get when the selfless patriots die away?

The primary job of any liberal constitution is not that it provides and allocates powers, but that it effectively checks and balances those with powers.

It assumes the worst – even if there are hopes for the best.

And if those with the greatest powers in any political system are without checks and balances then it should not come as a surprise that powers are abused.

Indeed, it would be more of a surprise if they were not.

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When both lawyers and the law are to blame

4th March 2022

Over at the Financial Times I have a piece on the extent to which lawyers are to be blamed for the abuse of English law by oligarchs.

https://twitter.com/davidallengreen/status/1499802380711387138

The article is, in turn, an elaboration of a post I did at this blog earlier this week – and it is a topic I have also tweeted about.

And one response has been to assume that my attempt to say that lawyers are not entirely to blame means that it is being suggested that lawyers are not at all to blame.

I have been careful to state – and explain – that lawyers are culpable, and that solicitors especially get to choose who they act for and in what way.

This is not good enough for some commenters – and I have been told that I am somehow making excuses.

But the problem is with any area of law that relates to dreadful things – oligarchs, torture, slavery, police brutality – there are both systems and individual agency.

This is an area this blog has explored before.

https://twitter.com/davidallengreen/status/1424059049360994307

And the focus on either systems or individual agency does not give you a full understanding of how the law and lawyers can enable such bad things to happen.

It has not been pleasant getting the ire that some want to dump on lawyers generally – but until and unless we can see that problems can be both systemic and personal, we are unlikely to resolve those problems.

And just jeering at lawyers, while satisfying, can be a substitute for meaningful reform of bad law and bad legal practice.

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Realpolitik v universal war crimes jurisdiction?

2nd March 2022

Just a quick post tonight to ask a question to which I do not know the answer.

If – as a matter of Realpolitik – the invasion of Ukraine could be brought to an end by an amnesty for Putin, would that be a price worth paying?

Would it be worth excusing him from any war crimes prosecution just so as to bring the invasion to an end?

Or should there be an absolute insistence that, whatever happens, Putin must face a war crimes prosecution?

What do you think?

Realpolitik or universal war crimes jurisdiction?

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Are President Biden’s comments on ‘the Irish Accords’ a life line for the Human Rights Act?

22nd September 2021

Yesterday United States President Biden spoke about his concern about a possible change to what he called ‘the Irish Accords’.

From the context of the question and answer, Biden meant the Good Friday/Belfast Agreement – though the question was framed in terms of the Northern Irish Protocol of the Brexit withdrawal agreement.

The question and answer are here and you should watch and listen for yourself:

You will see in the tweet above that the estimable Sonya Sceats, the chief executive of Freedom from Torture, avers that the exchange is a life line for the Human Rights Act 1998.

Is she right?

And what is the connection between that exchange and the Human Rights Act 1998?

Here we need to see what the Good Friday/Belfast Agreement says.

In respect of the European Convention on Human Rights (ECHR), the agreement says the following:

‘There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including […] the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission [and] arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland’

and

‘The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency’.

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These passages are explicit: the ECHR is a ‘safeguard’ and the ECHR has to be enforceable in the courts of Northern Ireland.

The agreement does not expressly mention the Human Rights Act 1998 – not least because that legislation had not yet been passed at the time of the agreement.

But one of the things that the act does in respect of Northern Ireland – as well as for the rest of the United Kingdom – is to make the ECHR enforceable directly in the courts.

This is instead of requiring a party seeking to rely on the ECHR to petition the European Court of Human Rights in Strasbourg, as was the position before the act took effect.

Of course: you do not – strictly – need the Human Rights Act 1998 to be in place to fulfil the express requirements of the Good Friday/Belfast Agreement, as long as the ECHR remains enforceable locally in Northern Ireland.

But if the Act were to be repealed – which is a long-term goal of the new lord chancellor and justice secretary Dominic Raab – then there would need to be replacement legislation in place the very day the repeal took effect for ECHR rights to remain directly enforceable in the courts of Northern Ireland.

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So does this mean the Human Rights Act 1998 is safe?

I am not so sure.

I averred on this blog when Raab was appointed (and I am sorry to quote myself):

‘And one would not be surprised that one stipulation made by Raab in accepting the position as lord chancellor is that he get another crack at repealing the human rights act.

‘If so, then the act will probably be repealed – though there will no doubt be a less strikingly (and provocatively) entitled ‘European Convention on Human Rights (Interpretation and Incorporation of Articles) and Related Purposes Act’ in its stead – not least because the Good Friday Agreement provides that the convention has to be enforceable in Northern Ireland.’

Having seen the exchange with Biden, I am now wondering if my (dismal) view is correct.

A wise government of the United Kingdom will be anxious not to give the slightest indication that anything related to the Good Friday/Belfast Agreement was up for any change – and continuing local enforcement of the ECHR is an express provision of that agreement.

A wise government, concerned about its relations with the United States, would thereby not touch the repeal of the Human Rights Act 1998 with a barge pole.

It would just take one credible complaint that the Good Friday/Belfast Agreement was at risk, and there would be an international problem.

Repealing the Human Rights Act 1998 would not be worth these risks – especially as it would have to be replaced immediately with legislation having the identical effect in respect of Northern Ireland.

But we do not have a wise government – we have a silly government.

And given the long-term obsession of the new lord chancellor with repealing the Human Rights Act 1998 – and that this may even be a reason for why he accepted his political demotion – one can see the repeal (and its immediate replacement) still going ahead in symbolic form – even if not in much substance.

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But the politics of symbolism does not just have one direction.

Against Raab’s fixation with the symbolism of repealing the Human Rights Act 1998 is the transatlantic symbolism of doing anything that could remotely affect the Good Friday/Belfast Agreement.

So it may be that Sceats’ view is correct – and the Human Rights Act 1998 is safer than before.

But, on any view, repeal seems an unwise political path to take, given how much politically – and how little legally – is at stake.

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9/11 x 20

11th September 2021

The general lot of law and policy in the last twenty years has not been a happy one.

Torture used and regularised; an invasion and occupation that not only had no legal basis but also greatly discredited politics itself; the growth of the surveillance state; and the general illiberal turn to nationalistic populist authoritarianism.

All this followed the terrorist attack twenty years ago today.

That these things followed that attack cannot be disputed, as a matter of chronology.

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But what about causation?

Did 9/11 cause the illiberal turn?

Anyone with an interest in the subject will have a view.

But I am afraid I think the illiberal turn would have happened anyway.

There was never any rational connection between 9/11 and the Iraq invasion – and so there would have just been another pretext instead of the ‘war on terror’.

Those with power will torture if they can get away with it – and how the United Kingdom so readily participated in torture would not surprise anyone with knowledge of what the British did in Kenya and Northern Ireland in the post-war period alone.

Those with power did not need a reason to use and regularise torture: they just need an excuse.

And the developments in computer and communications technology since 2001 would have meant the state seeking more surveillance powers, regardless of the attack on the twin towers.

So in essence: it is plausible that all the bad things in law and policy that have happened since 9/11 would have happened anyway.

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