By the time the millennium approached, my schoolboy career goal of addressing Old Bailey juries had been achieved. I even had my own locker in that holy of holies, the QCs’ dressing room, where each morning the studs were inserted into the wing collar – carefully, to avoid that vulnerable gland in the neck – before sashaying down the spiral staircase, silk gown flapping, to the appointed court. It was a sign of my age that the judges were more polite, and the policemen younger. This was a selfcontained world, in which you could pass pleasantries with your opponent of a morning when standing at the robing room urinals, before dumping on his arguments in a court below. There were frequent visits to the law courts in the Strand for libel cases or actions against the government – as the Human Rights Act took hold after 1998, these became more likely to succeed.
There were also my visits to the Privy Council in Downing Street and to the countries for which it was the final appeal, and missions for Amnesty International to places as varied as apartheid South Africa, post-conflict Vietnam and communist Czechoslovakia. Grave violations of human rights were occurring to dissidents in each country, far graver than those I was fighting in Britain, and they began to draw me away, more and more, from my locker in the silks’ robing room at London’s Central Criminal Court.
The rights themselves needed no new definition. They had been settled back in 1948, when Eleanor Roosevelt handed the Universal Declaration of Human Rights (the ‘Magna Carta of all mankind’) to the president of the UN General Assembly, Australia’s H. V. ‘Doc’ Evatt. At the same time came the Genocide Convention and then the Geneva Conventions, requiring humane treatment for prisoners of war. What this great postwar triptych did not have was an enforcement procedure – a system to bring violators to trial and punishment. As a result, global justice was just smoke in the pipe dreams of professors. I am what is called a ‘positivist’ in jurisprudence: I hold that a rule is one of law not because it can be found in a treaty or a textbook but because there is at least a slim prospect that somewhere someday someone will be arrested for its breach. Amnesty missions were a good education about the need for enforceability, and I was inspired by victims I met in each country.
For instance, there was the sad-eyed old ‘student’ in a Vietnamese ‘re-education’ camp. He had been a civil servant in South Vietnam, the government for which America had fought and lost, leaving its allies to communist revenge. ‘Re-education’ was a euphemism for indefinite detention, in a prison where the library had books by only one author – V. I. Lenin. The prisoner was routinely tortured, to make sure he had read them, but his main concern was for his children, who, as the offspring of a ‘disloyal citizen’, were themselves denied education, food and work (reprisals against the family members of dissidents are a particularly nasty feature of communist regimes, as they were of the Nazis’).
There was the poet Robert Ratshitanga, the prisoner of Venda, a Bantustan puppet state invented by the government of South Africa to pretend that black people had some degree of independence. His crime had been to give a plate of porridge to starving ANC guerrillas, and he was facing a mandatory five-year sentence in a malaria-ridden prison. But – and probably because an Amnesty observer was present – the prosecution offered him a deal which would have him released in a few months. All he had to do was to plead guilty to committing an act ‘with an intention to impair the sovereignty of the state of Venda’. He refused, despite suffering from a serious illness which would see him dead before his sentence was finished. ‘There is no way,’ he told me, ‘absolutely no way, that I can bring myself to acknowledge the existence of the state of Venda.’ He had extraordinary presence and dignity, and I failed to convince him to save his own life by uttering the artificial words demanded by the state – the state, of course, of South Africa. It was a true act of conscience, to decline to receive mercy at the hands of a country in which he did not believe. On my nomination, Amnesty made him a prisoner of conscience.
There are ethical problems which can arise on the kinds of ‘fact-finding’ missions I conducted for Amnesty and other human rights organisations: you can never find facts from a prisoner when a guard is in earshot – indeed, you should never put the prisoner in peril by inviting him to criticise his captors in those circumstances, because he will probably be punished after you leave. You must beware of government translators, and watch out for the power structure in refugee camps, which are usually run by a political faction which will have a ‘line’ about the events at home which refugee claimants will be coached to repeat.
You must never put your interviewees in peril, which means obeying the local law, no matter how absurd. This was brought home to me the first time I took Václav Havel to lunch – he was on bail and could have been returned to prison at any time. I had just arrived and did not have any of the devalued local currency, and assumed I could pay in US dollars, which were accepted with alacrity everywhere in Prague. Havel explained that if I did he would be arrested by the secret police watching from a far table (they always sit near the window) and charged with being an accomplice in ‘black marketeering’ – a rule enforced only against enemies of the state. ‘This is the first rule of being a dissident – you must scrupulously obey the law.’
Sometimes, this can be difficult. When I was observing trials for Amnesty International in the puppet homeland of Venda, I would arrive at Johannesburg Airport at 5 a.m., hire a car and drive for several hours up a straight road (bringing out what my wife called my ‘Australian male revhead tendencies’) before turning off to the courtroom. Inevitably, on one occasion I fell into a speed trap where a slightly apologetic policeman issued me a ticket, which I paid on the spot. When I mentioned this to Amnesty, they took it very seriously and a top-level meeting was called on the question of whether they should reimburse me. They decided to do so – but I would not rely on this as a precedent.
More serious difficulties can arise over confidentiality. I always interviewed judges and prosecutors, inducing them to talk with a letter from Amnesty’s Secretary General promising to keep their comments confidential. One of my missions to apartheid South Africa was to consider the correctness of the convictions of the ‘Sharpeville Six’ – half a dozen protesters who had been sentenced to death under the now discredited ‘common purpose’ doctrine: they had been part of a crowd which had witnessed the ‘necklacing’ of an informer although they had no direct part in this grisly reprisal. They had been convicted and sentenced by a judge somewhat inappropriately named Human. I confronted him at his house, and found a rather lonely old racist, dying of alcohol poisoning, but who needed to talk. He took me for drinks at the Pretoria Club, which he boasted was very progressive (‘We even admit Jews,’ he said, although not blacks or women). After a few more drinks, he made some admissions to me that might have founded an appeal. Had the prisoners not been reprieved, would I have broken my promise of confidentiality in order to save their necks? I would need to consult with Amnesty, but ultimately my conscience would probably have made me speak out: after all, as every equity lawyer knows, there can be no confidence in iniquity.
I visited Václav Havel regularly in the run-up to the Velvet Revolution which brought him to the presidency. In this period, as the leader of the dissident group Charter 77, this great philosopher-playwright-politician was under constant surveillance from the communist government, and regularly taken back to prison. Czechoslovakia was sometimes a truly Kafkaesque experience in those dog-days of Warsaw Pact communism. The government actually prosecuted the Jazz Society, which had been raising money to honour John Lennon’s memory, pretending that it had been profiteering, although it was a non-profit-making organisation. I don’t particularly like jazz (you keep thinking it will turn into a tune, but it doesn’t); however, the prosecution of Karel Srp, the Jazz Society president, was an opportunity to experience ‘telephone justice’, which operated in most communist countries. The judge, a party worker, was telephoned by the party boss the night before the trial and told to convict and how long to make the sentence. It was what everyone calls a ‘kangaroo court’ (everyone except me, because as an Australian I cannot bring myself to use the phrase – I do not know what our beloved marsupial has done to become a symbol for injustice). The Jazz Society trial ended with a two-year prison sentence for the leader, less than it would have been if we had not fomented an international fuss. As I came out of the court building in Prague’s Charles Square with Havel, we were seen by several hundred young protesters, who struck up a ragged chorus of ‘We shall overcome’. ‘That’s impressive,’ I said to Václav. ‘Yes,’ he replied, ‘and on these occasions you can always spot the secret police – they are the ones who know all the words.’
* * *
In Europe, a ray of human rights hope had started to shine some years before Havel’s Velvet Revolution in 1989. The European Convention on Human Rights, drafted by British lawyers and ratified in 1951 by Western European countries, aimed to be a bulwark against the encroachment of communism. It had a court in Strasbourg where individuals could petition, and any government found in breach of the Convention had to change its law in order to comply. I had first appeared in the court to win a right of appeal for the media (the Channel 4 case – see Chapter Nine) and in 1988 I brought a case against Denmark which had international consequences. I acted for Mogens Hauschildt, a dealer in silver bullion – ‘the silver king’ of Denmark, notorious there for an alleged fraud. He had been arrested and denied bail by a judge who had looked at the evidence and decided that he might flee because he was likely to be found guilty at his trial. A few months later the very same judge presided at his trial and, surprise surprise, found him guilty. Obviously this judge did not have an open mind – he had prejudged the case at the bail application, and had gone on to fulfil his own prophecy. The Human Rights Convention guarantees everyone an ‘independent and impartial judge’ and this judge was patently not impartial.
The importance of the case was that Denmark, like some other European countries, had what is termed an ‘inquisitorial’ system of criminal justice, where a judge does the investigating (or supervises the police investigators). Britain and America have the ‘adversarial’ system, in which the prosecution do the investigation and present its case in a court where a judge who has had nothing to do with it previously presides, and the final decision is left to a jury. In Demark, however, the judge who supervised the prosecution process – granting search warrants, denying bail and so on – would also act as the trial judge, sitting without a jury. It was a system dating back to the Grand Inquisitors of the Spanish Inquisition, and the Danish government could not understand my argument about why it gave rise to a perception that the judge was biased. It was so confident of victory that it offered a free trip for any law student who wanted to observe its success, and over a hundred took up the offer. I had brought only my new secret weapon, a brilliant young junior, Keir Starmer. It was his first trip abroad, and he forgot his passport: my first argument in Strasbourg was to convince the gendarmerie to allow the future shadow Brexit Secretary to enter Europe.
For a barrister there is nothing more important than securing an impartial judge and I warmed to the subject with some passion at the hearing. Logic too was on our side – my forensic radar told me that the Danish case, based on its traditional way of working and the difficulty of changing it, was coming apart at the seams. In due course the court held that a judge who conducts the investigative stage against a defendant cannot preside at his trial.89 Hauschildt v Denmark is now a leading authority, from a court which gained in power a couple of years later when the Soviet Union collapsed and all its client states – led by Czechoslovakia under President Havel – signed up to its Convention. It now has jurisdiction over forty-seven countries (including Turkey and Russia) and lays down basic standards for due process and fair trial.
The Hauschildt case was probably the most influential result of all my trips to Strasbourg. In retrospect, it is hard to imagine how any justice system could think a trial judge impartial who had repeatedly made pretrial decisions on the basis that the defendant was likely to be found guilty. I have no quibble at all about the constitutional system which places a judge – an ‘investigating magistrate’, in charge of, or at least supervising, police inquiries into the suspect. British police could certainly benefit from such oversight, and it might be thought that there are fewer wrongful convictions – and certainly fewer wrongful acquittals – in France and Denmark than in the UK. What is crucial, however, and now accepted throughout Europe as a result of the Hauschildt case, is that the judge at the trial itself must not be the same judge who has authorised the police investigations into the suspect on the basis that he is likely to be guilty, or has charged him on that basis. The English principle that justice must be seen to be done, and therefore the trial judge must have made no pre-judgment on the suspect, has come to be internationally accepted: every human rights convention, and most constitutions, guarantee the right to an impartial judge.
This was never the case in communist countries, which practised ‘telephone justice’. Nor is it the case in Brazil, where investigating judges act as trial judges, and are free to declare their pre-trial suspicions about the defendant before he or she goes on trial. In 2016 I had to observe the conduct of one such judge, an anti-corruption campaigner named Sérgio Moro, as he started an avalanche of prejudice against his target, the former President of Brazil, Luiz Inácio Lula da Silva, known to his people, and throughout the world, as ‘Lula’. Moro and his prosecution team went to lengths that no judge in England or on the Continent would ever contemplate to convict a defendant, and I took Lula’s case to an international tribunal, the UN’s Human Rights Committee in Geneva, to complain that he was not being tried in accordance with its standards. Corruption is a serious charge, and common enough in Brazil that prosecutions for it are very much in the public interest. But only if they are fair – and Moro’s are not.
Lula is something of a phenomenon who has inspired working-class men and women throughout the third world. He was born in desperate poverty in a shanty town, and went to work to support his family at the age of eight, selling peanuts on the street. At fourteen he passed his only exam, about how to operate a lathe, and worked at that trade until his charisma and concern for fellow workers led to an invitation to become an official of his trade union, and, soon, the leader. His lack of schooling turned out to be an advantage, as he imbibed none of the revolutionary agendas fashionable at universities in the 1960s – he was interested only in improving the terrible condition of workers in Brazil and reducing the poverty of its people. He decided, to that end, that the trade unions should have their own political force – the Workers’ Party – and stood for President as its leader. He was elected in 2002 with 52 million votes, and again in 2008 with 58 million, which made him at the time, as President Obama joked, the most popular politician in the world. His presidency was a fine time for Brazil: aided by a favourable economic climate, some 20 million people were helped out of poverty by policies that are recommended today by the UN, involving family allowance to mothers if their children are schooled and inoculated. He could not constitutionally stand for the next presidential election in 2010, and stood aside for his Workers’ Party protégée Dilma Rousseff.
Thereafter, like many Western ex-leaders, he made his living by giving speeches for money – most of which was donated to an institute to promote his ideas on poverty relief. He lives very modestly in a small apartment in a nondescript building outside São Paolo. I visited – to subject the home to my own test for corrupt people, i.e. whether there were gold taps in the bathroom. There were none – he was well-known to live, without luxury, a workaholic life for workers and for the Workers’ Party.
I was under no professional obligation to take Lula’s case to Geneva, so I investigated its background, which was set against the endemic corruption (which had started long before Lula) in parts of Brazil’s public life. This particular part concerned bribes allegedly given by construction and engineering companies to win contracts with Petrobras, the nationalised oil company: some of this money had supposedly been funnelled to political parties, including the Workers’ Party. I could find no evidence that Lula had instigated or personally benefited from this corruption, and nor could Sérgio Moro, the judge determined to convict him. Moro’s taskforce of scores of police and prosecutors found no suspect money in Lula’s accounts (none of them overseas) nor any receipts that had not been declared and taxed.
Unlike some other politicians and businessmen sucked into Moro’s ‘Operation Carwash’ (so called because it started in the discovery of money laundered through a garage within Moro’s jurisdiction), the actual charges against Lula were quite minor, for example that his family had used, half a dozen times a year, a country property belonging to wealthy friends (given Tony Blair’s habit of taking holidays on the property of friends ranging from the Bee Gees to Silvio Berlusconi, this hardly seemed a crime). The first and main charge was that his wife had bought a share in a beachfront apartment from a housing co-op which had been taken over by a ‘Carwash’ contractor: it had offered them an upgrade to a more spacious apartment, and the contractor made some £200,000 worth of improvements to entice them to move in. But Lula never did, and the legal title remained in the name of the contractor. I was quite willing to believe that an unscrupulous developer might do a favour like this to ingratiate itself with a once and future President (Lula was entitled to stand again in 2018) but there was no evidence that Lula had done anything, or offered to do anything, in return – there was no quid pro quo that is necessary to prove bribery. He was out of office at the time, had no power to award contracts and there was no evidence that he had promised to do anything for them. So I thought Lula was probably innocent, but even had I thought him probably guilty I would have taken the case – an appeal to the UN Human Rights Committee – because of the abuses he had suffered at Moro’s hands.
This ‘investigating judge’, before he turned himself into Lula’s trial judge, had taken liberties that would have him removed from the case in countries that uphold the rule of law. Moro had used his power to authorise interceptions of Lula’s telephone conversations and those of his family, his friends and even his lawyer. Under Brazilian law, these must be kept secret. But Judge Moro gave the audio tapes of the intercepts to the media, which published them with relish. Then, his zeal took him a step too far. He stopped the intercepts, but contrary to his order they continued, and recorded a conversation with President Rousseff. These tapes, illegally recorded against his own order, Moro decided he should release for public delectation. This lawbreaking was too much for Brazil’s supine Supreme Court, and Moro had to concede ungraciously that his judgement might have been incorrect. Still the Supreme Court did not remove him from the case. In no other advanced country would a judge be permitted to whip up public animosity against a suspect he was about to try – he would inevitably be removed from his victim’s case. But Moro was untouchable – under Brazil’s anomalous criminal procedure, he is the judge on the case, who orders investigative procedures against a suspect, charges him and then turns around to try him, without a jury or assessors. It is as if the policeman who investigates, arrests and charges you suddenly takes off his helmet, puts on a wig and finds you guilty.
In the run-up to the trial, Moro’s team worked hard to create a public expectation of guilt. His chief prosecutor took a ninety-minute slot on national television to explain to the public why Lula should be convicted. So much for the presumption of innocence – Brazil has no contempt-of-court law, nor any rule that stops prosecutors and judges from attacking suspects before or during their trial. The chief prosecutor even published his own book, detailing his case against Lula, in the middle of the trial. Meanwhile, Moro attended the launch of a book that defamed and condemned Lula, signing copies and posing for press photographs. He publicly congratulated right-wing demonstrators who sang his praises in the street, and it was impossible to go into a bookshop without seeing his photograph, in an Eliot Ness pose, on the covers of books and magazines. The media, dominated by the giant Globo franchise, assumed Lula’s guilt and faked pictures of him in prison clothing: these are reproduced on balloons and life-size rubber dolls, held aloft at demonstrations against the workers’ party. All this is made possible by an unfair system of investigation and trial in which there is no effective distinction between prosecutorial and judicial functions and no protection for the presumption of innocence.
When first invited, I did not particularly want to visit Brazil – the Zika virus was at its height and it was not warm enough to swim at Copacabana. I did have a sneaking desire to see whether Rio really does have a more beautiful harbour than Sydney (on closer inspection, it does not). I am glad I went, however, and have gone back, not only because of the dedication and courage of Lula’s beleaguered defence attorneys, but for the opportunity to survey a legal system constructed in such a primitive way that gives me renewed confidence in – and actually gratitude for – our own. I am not complacent about it, having strived over the years for reform, but I do think we should always strive for a system that provides, as far as humanly possible (and sometimes it is not possible), a fair trial before an impartial judge.
In July 2017, Judge Moro predictably convicted Lula and sentenced him over the beach apartment to a jail term of nine and a half years in prison. He appealed to the Federal Court in the southern city of Porto Alegre, whose Chief Justice immediately announced that Moro’s judgement was ‘impeccable’. I doubt that he had the time to read it, but this is a court which abandoned from the outset even the appearance of impartiality. Shortly before the appeal was heard, the Chief Justice’s registrar posted on her Facebook page her wish that Lula be sent to prison, urging her friends to support her. The Chief Justice refused to criticise her, and indeed endorsed her right to prejudge the man who was seeking justice from his court.
I attended, with a translator, the so-called appeal hearing in January 2018. There were meant to be three judges, but there seemed to be four. The fourth turned out to be the chief prosecutor, sitting on the right hand of the presiding judge and retiring with them for lunch and coffee. He turned to his colleagues to make the prosecution’s submissions, for half an hour, whereupon Lula’s lawyer had fifteen minutes to respond. The judges asked no questions; they simply pulled out their judgments, already written and typed, and read them – for the next six hours. The ‘hearing’ was a farce – they had come to it not with an open mind, but with a decision – to reject the appeal and to increase the sentence to twelve years – already agreed.
The little lathe-worker divides this nation of 210 million people very much on class lines: the wealthy, the professional classes, the Globo media (more right-wing than the Murdoch media) and the judges (among the best-paid in the world) all oppose him: the workers love him, as do most of those falling between the cracks of the favelas. The truth, probably, is that Lula could never be tried fairly in Brazil. Which is why it was necessary to bring aspects of his case to an impartial UN tribunal. It may well decline to hear the case until all his appeals are decided, and he will have to serve some time in prison (he surrendered to Moro’s arrest warrant in March 2018) and perhaps suffer disqualification from standing again for President. However, by bringing the complaint to Geneva we did something to highlight the injustices he has suffered so far. He is now in prison for a crime he did not commit – a ‘bribe’ of an upgraded apartment that he never accepted and in any event did nothing for in return.
Political corruption is a curse – the seamy side of democracy, by which business people steal from the public purse and politicians profit – and it does not matter that the profits are not for themselves but for their party (even if it is the Workers’ Party). But you cannot combat corruption effectively unless you prosecute it fairly. Otherwise, convictions will be counterproductive, because they will not be accepted as just, and the rule of law will suffer.
There are several inquiry models that Brazil could adopt, none more successful than the Independent Commission Against Corruption (ICAC), pioneered in Hong Kong and now a regular feature of parliamentary democracy in Singapore, Sydney and elsewhere. It involves a permanent and well-resourced body tasked to investigate wrongdoing by politicians, public servants and state enterprises, with full powers of surveillance and arrest and public hearings (at which suspects are represented) overseen by a distinguished committee to ensure its work does not become politically partisan. Those of its reports which allege criminal behaviour are referred to prosecutors and the evidence is tested at trial by impartial judges who have not been involved in the process of gathering it. The accountability of public officials is achieved not by leaks to the media but at public hearings where the other side of the story may be heard: any charge that results is subsequently the subject of a fair trial. There are other effective models, none of which rely on public demeaning of suspects by an all-powerful judge-prosecutor working hand-in-glove with the media to create an expectation that the suspect will be found guilty – a prophecy that the judge-prosecutor is then empowered to fulfil.
Lula deserves respect for his achievements, but not immunity. If there is evidence that he personally benefited from corruption, he must answer it, but before an impartial judge and in proceedings that give him a fair opportunity to do so. Judge Moro and the prejudice whipped up by the Globo media have made this impossible: as the prison-garb Lula dolls and balloons waving in the streets demonstrate, Operation Car Wash has turned into a kind of lynch law aimed at pulling down the most successful symbol of workers’ power in Latin America. That is why it must be exposed – not for the sake of corrupt congressmen or thieving construction bosses, but for respect for human rights, and protection against prosecutions that turn into persecutions.
* * *
The job that really opened my eyes to the need to combat corruption effectively came many years before my experience of Brazil. In 1990, I was appointed as counsel to a Royal Commission which uncovered a plot that belonged in a James Bond movie. It was hatched in Antigua, a small tourist island with 365 beaches (‘one for every day of the year’) and an obsessive love for cricket inspired by its legendary batsman, Viv Richards. It was still ruled by the trade unionist who had led it to independence from Britain in 1981, one V. C. Bird, who gave his name to its airport, its main street and many of its enterprises, the most wicked of which was a project of his son, Vere Bird Jr, Minister for National Security. Vere Bird Jr was in the pay of the Medellín cartel – led by Pablo Escobar and Rodríguez Gacha – who needed some up-to-date weapons for their murders. Vere Jr placed an order with Israeli Military Industries for Uzi sub-machine guns and Galil assault rifles, and arranged for them to be shipped to Antigua and deposited in a container at the dock of St John’s, the capital. The very night of their arrival on the docks, a tramp steamer owned by Escobar slipped into the harbour, loaded the container and took it off to Colombia, where one of the rifles was used to kill a presidential candidate. The assassin dropped the rifle, which was identified as coming from Israeli Military Industries. Colombia accused Israel of dealing with the cartel and Israel accused Antigua. Under pressure from the USA and Britain, Antigua set up a Royal Commission under Sir Louis Blom-Cooper, who asked me to act as its counsel to investigate where the truth lay.90
It lay with the utterly corrupt Vere Bird Jr, although this venal and stupid character had been played upon by some Israeli mercenaries who had been training Escobar’s terrorist militia in Colombia. They had not only arranged the gun shipments but had agreed with Vere to move the terrorist training to Antigua, using the facilities of the local defence force. The drug trafficking cartel, in other words, at war with a democratically elected government and busy killing judges and journalists courageous enough to oppose them, would have their vicious army trained by Israeli mercenaries (and a few drop-outs from the SAS) with facilities on the island which had unwittingly been provided by the UK and America, which funded the Antiguan defence force. Fortunately, the conspirators were incompetent and the plot took little time to unravel: their telephone records showed them making calls to Medellín that they could not explain. They had lazily relied on their secretaries to implement the details, church-going women who told the truth under oath when summoned to give evidence. Our proceedings were televised, and the people of Antigua were able to see, under cross-examination, just how rotten their government was. They dubbed me ‘the Silver Fox’ because of my hair colour – these days, my sobriquet would be ‘the mangy grey fox’. (At least it was an improvement on ‘the Rottweiler’, the tag given me by the Daily Mail when it was thought I would cross-examine Diana.)
International law had let down the people of Colombia, and of Antigua. The world was beginning to be concerned about weapons of mass destruction, but most innocent victims of organised crime and marauding armies die from bullets fired from conventional weapons like assault rifles and sub-machine guns. I went to Washington to present to a Senate committee our commission’s recommendations for a convention to control the sale and supply of conventional arms. We received strong support from Senator Sam Nunn, who recognised the ease with which they fall into the hands of narco-traffickers and terrorists, but it was another twenty years before member states of the UN, the most powerful of them steeped in the arms trade, could muster the numbers to support even a weak convention against the trafficking of conventional weapons.
The work in Antigua was difficult and dangerous. We lived in a beachfront villa guarded around the clock by armed police who feared for our safety from cartel hitmen. Their fears were not entirely fanciful and I paid many a silent tribute to all the judges and prosecutors who have been killed for fidelity to their profession, in Colombia by the cartel and in Italy by the Mafia. We enjoyed the calypso competitions, however, an art form which combines political satire and catchy music – clues to corruption on the island were contained in the songs, the bitter journalism of the shanty towns that tourist dollars, creamed off into politicians’ pockets, rarely reached. This is a familiar story: corrupt regimes run government as a private business, leaving schools and hospitals and social services starved of funds: tourism profits and foreign investment rarely percolate down to their people.
* * *
One contribution to international law arose from the coup in Fiji led by George Speight in 2000. The country had recently agreed, after years of democratic consultation, on a new constitution and had held an election based on preferential voting which had given the People’s Coalition fifty-eight out of the seventy-one seats in the House of Representatives. It was led by an Indian, Mahendra Chaudhry, and contained many Indian MPs. This displeased the indigenous Fijians of the extreme nationalist Taukei movement, who demanded a return to an earlier constitution which had discriminated in their favour. Speight and some armed thugs entered Parliament, assaulted the Prime Minister and held MPs hostage while demanding abrogation of the new constitution. The army’s strongman, Commander Bainimarama (in a Boris Johnson moment, I pronounced him ‘Commander Bananarama’), had the hostages released and Speight arrested, but then himself purported to abolish the constitution and install a government led by members of the indigenous faction. They drafted another constitution to discriminate in favour of ethnic Fijians, reserving the main positions in government for those of their race. This was merely ‘ethnic apartheid’ said the London QC brought in at great expense by the temporary government to defend these actions in court. It was unlawful apartheid, I said, and a breach of an international law against the overthrow of democracy.
We argued the case in the Court of Appeal of Fiji, which resembled an international tribunal. There were two New Zealand judges, one Tongan, the Chief Justice of Papua New Guinea and a judge of the NSW Supreme Court – who later joked that I had addressed a sixth judge, namely the television camera transmitting the hearing to the public (as almost all the people on the island were watching to see justice done, that would not have been inappropriate). The court rejected the new government’s argument that ‘might makes right’ and ordered it to dissolve itself and bring back Mr Chaudhry, despite its offer to hold elections some time in the future (this is usually an idle promise. Emergency rule becomes a way of life – only Cincinnatus returned to his farm).
The court’s decision gave support to our contention that although there was no international right to democracy (see China), there was nonetheless a legal presumption that peoples who have enjoyed democratic government cannot have it removed by force.91 No military junta or ‘interim’ power that overthrows a democratic government and lawful constitution should be recognised unless it can prove that it has popular acceptance and support – which of course Fiji’s new government did not. At least it complied with the court’s order and self-dissolved, bringing back Mr Chaudhry until he was replaced by another coup and the country ended up under the virtual dictatorship of Commander Bainimarama. I asked the UN to reconsider the use of Fijian troops as peacekeepers and urged President Obama to stop drinking Fiji Water because of its connection with the military regime. These appeals had no effect, but at least the case had helped to create a precedent, a presumption in international law that once a democracy, always a democracy.
This presumption did not appeal to the Australian government when it recolonised Norfolk Island in 2016, destroying the qualified democracy which had been granted back in 1979. Norfolk Island has only 2,000 inhabitants, half directly descended from Tahitian women who coupled with Fletcher Christian and his Bounty mates after they had jettisoned Captain Bligh. While Australia looked after their international affairs, its people enjoyed a good measure of self-government, which was uncontroversial and conservative – they forbore from legalising cannabis or euthanasia or same-sex marriage, encouraging instead a community ethos and custodianship of the Bounty relics and a world heritage site which displays the relics of the most brutal of Britain’s prisons. After the recolonisation, their Parliament was locked up and the islanders were told to stop singing ‘God Save the Queen’ – where else in the world could that be a revolutionary anthem?
I visited, at their invitation, to consider whether Australia’s recolonisation could be undone. The people of Norfolk had forebears oppressed by Bligh and were now being crushed by an Australian government led by Malcolm Bligh Turnbull (named in honour of the cantankerous captain). I found an obscure UN committee on decolonisation which agreed to accept their petition. Norfolk is a unique place, full of history, with its trademark pine trees framing two of the best beaches in the Pacific, and off its shores I rediscovered the joy of fishing (and the special excitement of getting the catch into the boat before it is taken off the hook by a shark). Of course, its constitutional arrangements were anomalous and idiosyncratic and as such unacceptable to bureaucrats in Canberra, who want to turn this unique place into just another seaside town in New South Wales, under NSW law but without any rights to vote in its elections. This is the problem with bureaucracies – the inability to tolerate difference, even when that difference has deep cultural and historical foundations.
* * *
Norfolk Island is a shared part of both Australian and British history: it was first used as a prison – an extension of the convict settlement at Sydney, under the rule of the first Governor, Captain Arthur Phillip. Of all the characters in that shared history, Phillip has always struck me as the most extraordinary. He was a humanitarian, far ahead of his time. A poor boy trained by the British Navy, he grew up to be one of Nelson’s captains and with amazing seamanship took his little floating prison, the First Fleet, in 1787 on a 12,000-mile voyage beyond the known world. He was a true egalitarian, sharing his own rations with the convicts when times were grim, and his survival skills kept the little colony going. He drafted the first law for a settlement that only he dreamed might ever become a nation: ‘There can be no slavery in a free land.’ He refused to carry out his instructions from the Home Office to acquire brides by force for the male convicts (seven for every female offender) from the indigenous women, and he did his best to foster good relations with the Aboriginals – refusing reprisals after they had speared him in the shoulder, punishing soldiers who mistreated them, and adopting two young Aboriginal men – Bennelong and Yemmerrawanne – whom he took back to England with him in 1792. On arrival, Bennelong sensibly took the next ship home, but Yemmerrawanne stayed – he was the first Australian expatriate – and died of pneumonia in the English winter. Phillip bought him an expensive tombstone which may still be viewed at the churchyard in Eltham, south London, just opposite the bus stop where Stephen Lawrence was murdered.
Despite his amazing achievements as white Australia’s founding father, Phillip was ignored by the British establishment: he was not vouchsafed burial in Westminster Abbey or even Bath Abbey (where he lived) but given a crummy grave somewhere in the church at Bathampton. In a fit of expatriate patriotism, I persuaded the premier of New South Wales that we should uplift both Phillip and Yemmerrawanne, bring them home and give them a state funeral and bury them under a monument overlooking Sydney Harbour. I was appointed a secret agent of the New South Wales government to negotiate with the relevant bishops to effectuate the removals. The Church of England’s consistory court had just made a ruling that permitted foreign heroes buried in English cemeteries to be taken back to the place of their heroism, and I saw no reason why it could not apply to Englishmen valued in another country but not at all in England. The Bishop of Bath and Wells could not have been more helpful, and arranged for the church’s exhumation expert to report on uplifting Captain Phillip. The Bishop of South London was very helpful, too: he immediately promised to locate Yemmerrawanne’s bones beneath the headstone. A week later, he called with bad news: the good parishioners of Eltham had needed more burial space, and the remains of the Aboriginal had been the first to be thrown out. The headstone had been propped up against the wall, and there was nothing beneath it. ‘We do have a lot of spare bones,’ said the Bishop, rather hopefully, I thought (he was looking forward to visiting Sydney), but I resisted the temptation – DNA testing would have caught us out.
The people of NSW would have to make do with Governor Phillip. But then came a second, final blow to my great plan: the exhumation expert could not find Phillip’s coffin. It was not where a notice in the church tells Australian tourists that it is, and it could not be located anywhere in the crypt beneath the building. The Church of England had lost the plot. It had, in fact, lost two plots, and my mission to bring the bones back to where they might be venerated could not be fulfilled.
There were other Aussie bones in London, however – those of Aboriginals slaughtered by British marines and convicts in Tasmania in the 1820s, in ‘black wars’ which wiped out almost the entire native population. A House of Commons Select Committee on Aborigines reported in 1836 that British occupation of the island ‘could not be reconciled with feelings of humanity or even with principles of justice or sound policy’ and that ‘it could not fail to leave an indelible stain upon the British government’. That ‘indelible stain’ is now, of course, called ‘genocide’. But a sordid byproduct was a trade in Aboriginal skulls and bones: graves were robbed and some natives may actually have been killed to supply Victorian mantelpieces with skeletal curios: the British Governor’s wife, Lady Franklin, was a particularly avid collector. In time, most of these human relics came into the hands of the Natural History Museum. There they sat in shoeboxes for upwards of a century, until 2009, when the Australian government (at the behest of its indigenous people) asked for them back. That was when the museum’s scientists suddenly took an interest, and announced that before they could be returned for proper burial they must first be subjected to ‘destructive testing’: they planned to cut teeth and some sections from the skulls in DNA laboratories and dissolve them in acid. This mutilation of their forebears outraged the Tasmanian Aboriginal Centre (TAC): I could feel the fury in the voice of its head, my old friend Michael Mansell, as he called to tell me how this would breach cultural taboos, torture the spirits of the deceased, and subject his people to desecration and disrespect. He was calling me on Thursday night (London time) to ask me to stop the testing, which was to be carried out on the Monday.
I was keen to help, but there is no property in a dead body and the museum had possession, traditionally nine-tenths of the law, although the odds had shortened thanks to the Human Rights Act (which requires some respect for religion and for family). The museum had ignored it, and had behaved arrogantly and unethically by not even attempting to consult with descendants or their representatives, the TAC. By Sunday I had put together the case for an injunction, which went before the ‘weekend judge’ on the High Court – coincidentally, its only black judge, Linda Dobbs. She granted the injunction, which the museum rushed into court on Monday to try to discharge it. Their counsel waxed indignant: these skulls were museum property, and its scientists were only going ‘to cut them about a bit’. That was an unfortunate turn of phrase: ‘What they are going to do, my Lord, is to experiment on the bones of victims of genocide.’
We held the injunction and the judge, taken aback at all the novel legal issues the case raised, begged us to try mediation. The museum at first refused, until it felt the pressure from donors disturbed at the prospect of ‘genetic prospecting’ on genocide victims. So the case did go to mediation, before the former Chief Justice of England and the former Chief Justice of NSW. The museum scientists were hard put to identify any positive value in the information they might glean through processes contrary to Aboriginal law, lore and religious belief concerning the treatment of the dead, requiring their remains to be lain to rest with customary ceremony in traditional lands.
My skeleton argument on behalf of the skeletons pointed out that Tasmanian Aboriginals are a minority group under international law, which gives a special status to their identity, culture and religion. There is an emerging principle of free, prior and informed consent by indigenous people to policies affecting their rights, and this principle had deliberately been ignored by museum scientists who believed (as did Dr Mengele, I suppose) that the pursuit of knowledge is an overriding good in itself. In this case, the scientists should have been aware that they were seeking to extract data from the remains of human beings killed in British genocide, unlawfully brought to Britain as the result of grave robberies and massacres, and that their experiments were intended to measure racial characteristics. These experimenters were looking for ‘natural abnormalities’ to put Aboriginals on the lower rung of the ladder of ‘human diversity’: after two centuries of stigmatic denigration by British scientists who portrayed them as ‘primitives’ with small brains, heavy brows and flat heads, it is little wonder that my Aboriginal clients were suspicious of the museum’s projected research.
The mediation took a whole week of anxious ethical wrangling, and it must be said that the museum representatives, so sure of their position at the outset, were slowly but sincerely won over to the indigenous viewpoint and eventually agreed to all the TAC demands. The remains of the lost tribe were returned for burial in their ancestral lands in Tasmania, where they can rest in peace safe from the carving knives of scientists, unless those scientists can convince the TAC that further knowledge really is worth acquiring. It was a result of some significance for the ethical duties of museums: I am not normally on the side of traditions and superstitions when they interfere with science, but there are moral limits to the acquisition of knowledge. Certainly where it involves an assault on human dignity expressed in burial customs, where no clear advantage can be predicted, and further racial degradation is on the cards.92
* * *
One request for a legal opinion turned into a book. It came from a group of Armenians who were upset by UK government statements that the evidence about massacres of Armenians at the hands of the Ottoman Turks in 1915 was ‘not sufficiently unequivocal’ to amount to genocide. What did I think? I had to warn them that as an independent QC I would have to make up my own mind on the issue and that no matter how much they paid me (in fact, very little) I might well decide that the killings did not fit the definition of ‘genocide’ at all. They were prepared to take the risk, and it was a pleasure to have the excuse to immerse myself in history books as well as law books to come up with the answer. There was no doubt at all: in 1915 the Ottomans had solved ‘the Armenian question’ by eliminating the Armenians, a Christian enclave whom they viewed as likely to support Britain rather than the Germans, with whom the Turks had opportunistically allied in the war. There were some two million Armenians within their borders, and the Young Turk government killed over half. They began by rounding up and murdering the intellectual leaders – politicians, professors, lawyers and the like – then conscripting able-bodied men, who were worked to death. Then they ordered the women, children and old men to march without food and medicine through the desert to places we only hear of now because they have recently been occupied by ISIS. Hundreds of thousands died from starvation and disease, as the government seized their homes and businesses and confiscated their property.
Since this extermination of part of a race on religious or racial grounds obviously satisfied the Genocide Convention definition, why was the UK government denying it? The answer was found in secret Foreign Office records, which it only disgorged after persistent enquiries under the Freedom of Information Act. The FCO told ministers – correctly – that Turkey was ‘neuralgic’ about the genocide, and that ‘HMG is open to criticism in terms of the ethical dimension. But given the importance of our relations (political, strategic and commercial) with Turkey … the current line is the only feasible option.’93
In other words, this had become ‘An Inconvenient Genocide’ (the title of my book): because of Turkey’s ‘neuralgia’ and because of its strategic and political importance, the truth could not be admitted.94 It still cannot, as Turkey remains a vital NATO ally and continues to threaten reprisals should the UK call the 1915 massacres by their proper name. Britain has, however, dropped the dishonest statement that the evidence is ‘not sufficiently unequivocal’; it now says that the question is for a court, knowing that there is no court to decide it. I am fortified by the fact that most authorities now accept the truth – it was pleasing to hear Pope Francis describe it as ‘the first genocide of the twentieth century’. (Popes are not infallible, however, and it was in fact the second genocide – the first was the massacre of the Herero people in modern-day Namibia, by German troops under the command of Herman Göring’s grandfather, in the first decade of the century.)
My absorption in Armenian history led me to take up the cause of its people who live in Nagorno-Karabakh, a delightful little country in the clouds, its mountain ranges full of ancient Christian churches (the Armenians were first to convert, back in 303 AD). Because of its land dispute with Azerbaijan, which has closed its airport, I have to take a bumpy six-hour car trip skirting Mount Ararat (resting place of Noah’s legendary Ark) and dodge bullets fired at random by the Azeri Army marshalled at the ‘line of contact’ – a line over which Armenian and Azeri soldiers have been shooting at each other for thirty years. Karabakh is one of those small countries (there are several of them in this region) whose right to exist is powerfully opposed by armed neighbours, and where the international community has dismally failed to broker peace. There were pogroms in the past, and both sides fought fiercely for their cause, although the siege of Stepanakert in 1991–92, where the Azeri planes and guns brutally targeted Armenian schools and hospitals, was a mini-Guernica. The background to the conflict is too complex even to sketch, but the foreground is all too apparent: what I see when I visit is young men and women whose lives are put on hold while they serve compulsorily for years in the armed forces. They are not tortured, of course, and only occasionally shot, but the waste of their young lives for want of a political solution is shameful.
Armenia, a country of three million people without oil wealth like Azerbaijan, or political importance like Turkey, could not survive without the help of its diaspora, concentrated in California, where I find myself every April reminding them of the genocide – though they need no reminding, only the consolation of knowing that others share their sorrow, and their anger that Turkey still denies history by refusing to apply the ‘g’ word to the Ottoman massacres.
* * *
As may be gathered from the cases in this chapter, my legal career had moved on from the worlds of Rumpole, John Mortimer and Jeremy Hutchinson, and seemed based, in the twenty-first century, at the departure terminal at Heathrow. I was not alone: the chambers formed Doughty Street International, with an office in The Hague to cater for members involved in cases in courts based there – the International Court of Justice, the International Criminal Court and various UN war crimes tribunals. I missed the congeniality and companionship in the Bar Mess of the Bailey, but there were prisoners in greater peril elsewhere in the world who claimed my attention.
My wife was not too bothered by my human rights work – it kept me out of the house. Sometimes, however, she was heard to express the wish that they would hang my clients quickly so my services would no longer be needed. She learnt her lesson, I think, early in our marriage when she did cut up rough about my devoting a weekend of fathering time to helping the only opposition MP in the Parliament of Mauritius, Navin Ramgoolam, under illegal attack from right-wing enemies. Some months later, tickets to Mauritius dropped through the post with a note from Navin saying that he had won the election, and indeed his party had won every seat in the house. Could I come and advise his government on law reform, and bring the family? So our family holidays – they were beach holidays for the family, while I drafted new laws, in that delightful island over the years of the Ramgoolam premiership – made up for my sojourns in less serene places. I was not allowed to take the kids to Africa after a trip to the Gambia, when I led them, under the tutelage of a dreadlocked Rasta guide, to a mysterious, gaseous lake to pat some rather large crocodiles. They were soporific from the gas, but with jaws large enough to swallow Georgie should they decide to yawn. I had faith in the magic of the lake, which had never had a fatality, but Kathy decided that working holidays should thereafter be confined to Mauritius and the Caribbean.
Of course, it is one consequence of acting for oppositionists that some of them eventually come to power and summon you back to help; this time you are accorded VIP treatment, sometimes from the same police who monitored you when you were acting against the government. My children became fond of the armed police who escorted them when I came to advise the government of Trinidad – they took Jules and Georgie to a funfair, and the kids took great delight in the fact that their guards were too frightened to join them on the ghost train.
My literary partnership with Kathy seemed to work – I would take the first draft of her novels with me to a death row, or to a dreary Holiday Inn in Sarasota near Jules’s tennis training camp, to wrestle their plots into some sort of shape. Kathy in return would take my drafts to the hairdresser’s and try to add some jokes, although she had to admit defeat with Crimes Against Humanity. She had fled school at age fifteen, and her quicksilver mind was untouched by university, so we were sometimes at cross-purposes. ‘You write here, “She felt she was in a Rousseau-like state of nature.” Don’t you know that Hobbes was the state of nature, while Rousseau was the social contract?’
‘But I was thinking of the painter, who depicted women in those jungles.’
Notes
89 Hauschildt v Denmark, Application No. 10486/83 Series A, No. 154 (1990) 12 EHRR 266.
90 See Louis Blom-Cooper, Guns to Antigua (London: Duckworth, 1991), and Geoffrey Robertson, The Justice Game, op. cit., Chapter 2.
91 See Republic of Fiji v Prasad, Melbourne Journal of International Law (Volume 2, Issue 1, 2001).
92 See Geoffrey Robertson, Dreaming Too Loud, op. cit., Chapter 8.
93 Memorandum from the FCO Eastern Department to Minister Joyce Quin and others, 12 April 1999. See Geoffrey Robertson, An Inconvenient Genocide: Who Now Remembers the Armenians? (London: Biteback Publishing, 2014), pp. 162–3.
94 An Inconvenient Genocide, op. cit.