I will not be lectured by this man

Australian PM, Julia Gillard’s speech accusing opposition leader Tony Abbott of sexism.

The speech follows comments by Mr Abbott calling to remove a member of Parliament, the speaker Mr Slipper, on the grounds of being a misogynist. Mr Slipper who was involved in a sexual harassment case which centred around what Mr Abbott called ‘vile’ text messages referring to women’s genitalia.

Mr Abbott was himself involved in an offensive advertising campaign against Gillard describing her as a ‘witch’ and a ‘man’s bitch’. He also attempted to play down his own close association with Mr Slipper by distancing himself from his former friend calling his actions shameful in light of the scandal. Ms Gillard turned Mr Abbott’s argument against him labeling him a misogynist and cited a string of sexist comments previously made by him. She also stated:

“I will not be lectured about sexism and misogyny by this man (Mr Abbott) … I will not. And the Government will not be lectured about sexism and misogyny by this man. Not now, not ever.”

US Supreme Court Rejects Blackwater Appeal – What does this mean for the accountability of Private Military Firms?

There are serious legal and human rights concerns about private military companies providing “security services” in conflict areas. Where the strict hierarchical discipline of the military is avoided, you may wonder who these companies are accountable to.

The recent Supreme Court decision regarding Blackwater Worldwide the US private security firm that operated in Iraq has left the door open to the possibility of holding these private firms accountable for unlawful violence in war zones.

On September 16, 2007 heavy gunfire erupted at the busy Nisour Square junction, killing at least 14 civilians including a 9 year old boy and leaving dozens injured. The shots were fired from a convoy of four armoured vehicles manned by Blackwater guards, who maintain that they were acting in self-defence after being shot at by insurgents.

Witnesses claim that the contractors were never in any danger and shot at civilians mercilessly and unprovoked. The chief prosecutor Kenneth Kohl disclosed that other Blackwater guards who had been on the convoy involved in the Nisour Square shootings reported the incident to Blackwater management, one guard describing it as “murder in cold blood“. However it appears that the  management failed to report these statements to the State Department.

The case had previously been thrown out by federal judge Ricardo Urbina on December 31, 2009 who cited misuse of statements made by the defendants by investigators.  The state department had ordered the guards to explain the details of the incident to investigators under the threat of losing their jobs. Their lawyer argued that using these statements to charge the four men amounted to a violation of their  constitutional right against self-incrimination and were made under duress.

However the charges were reinstated in April 2011 when a federal appeals court reopened the case and ordered the review of evidence against each individual defendant. The US Supreme Court refused to dismiss the manslaughter and weapons charges against the four defendants Paul Slough, Evan Liberty, Dustin Heard and Donald Ball and has declined to comment.

This is a small victory in holding private firms accountable for their actions in war zones. The privatisation of war and the use of private military firms is becoming increasingly prevalent and raises serious concerns over accountability. While this is not an isolated incident and it is likely that many unlawful actions by such contractors can go unnoticed due to the nature of their work, it provides a step towards creating a framework in which these companies could be held responsible for their actions.

Due to the transnational nature of many private military firms it is increasingly difficult to hold these companies responsible for the actions of their employees. The fact that these firms work in states in which the government has collapsed or is unable to enforce the necessary laws due to the condition of the state the operations of these firms often go unnoticed even if they are largely acting outside of the law.

Blackwater later changed their name to Xe Services, and after being unable to shake their bad reputation decided on a further name change now calling themselves Academi.

Consequences of Closed Material Procedures

The proposed ‘closed material procedures’ (CMPs) in the governments Green Paper seems not only alarming but also hugely misguided. The Green Paper proposes that these secret proceedings would be extended to any civil cases. CMPs would take place without the presence of the defendant and without their knowledge of the charges against them. In these closed procedures, ministers would be able to order hearings to be conducted in secret and claimants would be denied access to government evidence or witnesses.

While the absent defendant would be represented by a barrister in court, there may be no or little contact with their client. This would allow the material and evidence in the trial to be effectively unchallenged in court. To add to the secrecy and absurdity of the prospect of these proceedings,  even the final judgment could be wholly or partially withheld, allowing the convicted individual to be deprived of any information regarding his conviction.

Binyam Mohammed

The proposal comes after a number of actions were brought against intelligence agencies by former terrorist suspects, such as Binyam Mohammed, to the embarrassment of both government and the security services. Mohammed, an ex Guantanamo detainee and a British citizen, claims he was tortured while in custody, in the US amongst other places and accused the Britain of being complicit in this. Rather than disclosing intelligence related material to him and other former detainees, the British government paid him £1m in compensation.

Lord Carlile

In response to these proceedings against the government, it appears that high profile figures such as Sir Malcolm Rifkind, chairman of the parliamentary intelligence and security committee (and MP for Kensington), along with Lord Carlile QC are supporting CMPs as a viable a solution to such problems. The Green Paper proposes to extend the use of CMPs to civil claims. Lord Carlile criticised the current system as being insufficient in dealing with civil cases regarding national security, he claimed that payouts such as that received by Binyamin Mohammed was not an acceptable way of settling civil claims. He argued that the State should not be put in a position of having to choose to pay compensation to a claimant who may be the wrongdoer.

CMPs would take away the transparency of court procedures and give greater powers and increased secrecy to the workings of the security services and the government. The key issues here are accountability and transparency of the legal system. In its response to the Green Paper published on the HM website, the human rights group Reprieve gave a damning criticism of these proposals. They stated that this paper is simply asking the wrong questions, by seeking to drastically reduce the level of accountability of the government and intelligence services rather than attempting to improve these areas.

The response by Northamptonshire Police, welcomed the undisclosed sharing of secret information between states, however it also raised concerns over the misuse of CMPs and their human rights implications.

“The impact of the overuse of CMP’s would be to damage the UK reputation of a free and fair democracy. There are also considerations to be made pursuant to Article 6 of the European Convention on Human Rights – namely, the right to a fair trial”

Malcolm Rifkind

However  Malcolm Rifkind argues that the protection of sensitive material is essential to the co-operation with foreign intelligence agencies, and that intelligence sharing will be endangered if these exchanges are exposed in court. He claims that the sharing sensitive material with defendants and the court threatens the the future intelligence co-operation between states, by undermining the principle of confidentiality. Therefore publication of intelligence material would harm our national security.

It is not unusual for government agencies to support legislation infringing civil liberties and human rights in the name of national security. This legislation allowing civil judgements to be made behind closed doors, increases their powers at the expense of fairness and transparency. One of the most notable pieces of legislation in the UK regarding secrecy in the name of protecting national security is the Special Immigration Appeals Commission (SIAC). SIAC deals with appeals for foreign nationals facing detention, deportation or exclusion from the UK, often relating to alleged terrorism offences. It’s hearings and rulings are not fully revealed to the public nor to the appellant, this procedure has been widely criticised for it’s fairness and legality. To extend such secret procedures to civil matters is somewhat distrurbing.

Lord Carlile and Malcolm Rifkind stress the need for CMPs in the interests of national security, while this argument has been widely criticised by many of the respondents to the Green Paper. The response from the Special Advocates, who are appointed to work under SIAC in closed procedures and were proposed to act in CMPs, was particularly telling. They stated that no reason has been identified in the Green Paper to justify the introduction of such sweeping power.

“It is one thing to argue that, for reasons of national security, the unfairness and lack of transparency inherent in CMPs should be tolerated in specific areas…It is quite another to suggest that Government Ministers should be endowed with a discretionary power to extend that unfairness and lack of transparency to any civil proceedings, including proceedings to which they are themselves party.”

The apparent need for CMPs seems to be an attempt by the government to extend it’s powers in the under the guise of national security. The role that secrecy plays in the justice system appears to be solely to the advantage of the security services rather than in the interests of justice.  The Green Paper raises both grave procedural and practical concerns, whilst presenting a relatively unrealistic proposal. Transparency and accountability are essential elements of the justice system in England and Wales, by conducting trials in secret and in the absence of the defendant, these proceedings take away core features of a fair trial. Expanding the use of CMPs would also be debilitating for the practice and progression of common law, as these hearings would be prevented from being reported. This would deny lawyers from accessing precedents arising from these procedures, making them only available to a few existing special advocates.

Amnesty and Human Rights – Is Forgetting Justifiable?

The case of Baltasar Garzón has started a debate not only regarding judicial activism and the role of judges, but also around the recognition of amnesty for alleged war criminals.

Baltasar Garzón, a magistrate in Spain’s national court, was previously responsible for the arrest and attempted extradition of Chilean ex dictator and war criminal, Augusto Pinochet, from London in 1998. The British courts agreed due to the nature of the case, which related to the alleged torture of Spanish citizens under Pinochet, that the public international law principle of universal jurisdiction could be applied. However, the then home secretary, Jack Straw, turned down the extradition application on health grounds, due to the former dictator’s age and illness. Despite this, the arrest of General Pinochet encouraged the Chilean judicial system to prosecute past abuses.

Garzón was recently suspended after opening a formal court investigation into human rights abuses committed by Spain’s former dictatorship. He was seeking to investigate the deaths of 114,000 opponents of the Franco regime between 1936 and 1975. Garzón is now facing charges for abuse of power in his trial that opened in the Supreme Court in Madrid yesterday.

Baltasar Garzón

His judicial activism has been widely criticised and condemned by other judges, who claim he is harming the legitimacy of the judicial system. He has also been accused, by both high profile opponents and the media, of vanity and being motivated by his own interests. Nevertheless, Garzón maintains that opening the investigation was based on the same principles used to order the arrest of Chile’s Augusto Pinochet.

In 1977, during the transition to a democratic system in Spain, an amnesty was put in place to cover all crimes of a “political nature” committed during the regime. Mr Garzón argued that the amnesty law does not apply to crimes against humanity and that he was applying the same principles to the Franco regime as to that of Pinochet. However, a Supreme Court judge stated that his actions amounted to a breach of his duties as a judge and that his arguments had no basis under international law.

Under international law, the criminal prosecution of individuals responsible for human rights abuses is an essential part of a victim’s right to justice. The granting of an amnesty is not uncommon in certain situations following conflict; where violations of international humanitarian law have occurred on a massive scale, often involving a large section of the population. However, there is also a need to balance the victim’s rights to justice with the need of the State to promote reconciliation in dealing with past atrocities without provoking further conflict. Where States like Spain have enacted amnesties in periods of transition, it’s necessary to consider whether such amnesties should be recognised internationally.

So the question arises, should international principles apply to a (domestic or international) court’s decision on whether to recognise amnesties covering war crimes? When there is a threat to peace, there may be need for an amnesty, and other accountability measures, to deal with those responsible. This would of course not be the case in Spain, which almost half a century after the death of Francisco Franco, is a stable and democratic country.

It appears that the basis for trying Baltasar Garzón is not in fact relating to a  breach of the 1977 amnesty law, but rather a fear of his judicial activism.  Spanish courts have been criticised for trying to bury the past, failing to investigate or seek accountability for atrocities committed during the Franco regime, and during the Spanish Civil War. Why is there such a reluctance to address the crimes of the past? In 2009, the European Court of Human Rights held that an amnesty law is generally incompatible with the duty of a state to investigate acts of torture or barbarity.

Why has Garzón’s role in seeking to investigate human rights abuses landed him on trial? It appears that the judiciary does not want to recognise its role in examining the validity and relevance of this law. Its decision to criminalise questions regarding the regime seems both disproportionate and confused. Rather than trying Garzón for his actions as an individual, the judicary could be working together as a body to take an investigative role, and come to terms with its violent history dating back to the Spanish civil war.

Here is a short clip about Baltasar Garzón on the Guardian website.