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[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013HUMAN RIGHTS CENTRESCHOOL OF LAWCHALLENGING THE OPPRESSION OF LAWYERS IN TIMES OF CONFLICT13 November 2013CONFERENCE REPORTCopyright © 2013 Queen’s University Belfast and authors. 1

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Copyright © 2013 Queen’s University Belfast and authors. 2

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013ContentsKINDLY SPONSORED BY ........................................................................................................................... 7OVERVIEW ............................................................................................................................................... 9OFFICIAL CONFERENCE PHOTO ............................................................................................................. 10CONFERENCE AIM ................................................................................................................................. 11CONFERENCE AGENDA .......................................................................................................................... 13CONFERENCE PROCEEDINGS ................................................................................................................ 15KEYNOTE SPEECH .............................................................................................................................. 15RICHARD HARVEY .......................................................................................................................... 15PANEL DISCUSSION I: LAWYERS IN CONFLICT – A EUROPEAN PERSPECTIVE ................................... 35PROFESSOR KIERAN MCEVOY ....................................................................................................... 35IRATXE URIZAR .............................................................................................................................. 51DENIZ ARBET NEJBIR ..................................................................................................................... 65PROFESSOR PHILIP LEACH ............................................................................................................. 90PANEL DISCUSSION I: QUESTION AND ANSWER SESSION ................................................................ 94PANEL DISCUSSION II: LAWYERS IN CONFLICT – AN INTERNATIONAL PERSPECTIVE ..................... 101ANDREA BECKER ......................................................................................................................... 101DR TING XU ................................................................................................................................. 108PROFESSOR SARA CHANDLER ..................................................................................................... 122SIMARJIT KAUR ............................................................................................................................ 140JUDGE ESSA MOOSA ................................................................................................................... 170PANEL DISCUSSION II: QUESTION AND ANSWER SESSION ............................................................. 178PANEL DISCUSSION III: IMPROVING THE PROTECTION OF LAWYERS IN TIMES OF CONFLICT ....... 181DR TING XU ................................................................................................................................. 181PROFESSOR PHILIP LEACH ........................................................................................................... 182DENIZ ARBET NEJBIR ................................................................................................................... 183ANDREA BECKER ......................................................................................................................... 183PROFESSOR SIMON UCHENNA ORTUANYA ................................................................................ 184JUDGE ESSA MOOSA ................................................................................................................... 185PROFESSOR SARA CHANDLER ..................................................................................................... 186RICHARD HARVEY ........................................................................................................................ 187IRATXE URIZAR ............................................................................................................................ 188SIMARJIT KAUR ............................................................................................................................ 188PROFESSOR COLIN HARVEY ........................................................................................................ 189PANEL DISCUSSION III: QUESTION AND ANSWER SESSION ............................................................ 191CONCLUDING REMARKS ................................................................................................................. 193MEDIA REPORT ON CONFERENCE ....................................................................................................... 195ONLINE RESOURCES ............................................................................................................................ 199Copyright © 2013 Queen’s University Belfast and authors. 3


[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013CopyrightPublished in 2013 by the Law School, Queen’s University Belfast.Copyright © Queen’s University Belfast and individual authors of the enclosed papers andpresentations.All rights reserved. No part of this report may not be reproduced or transmitted in any formor by any means, electronic, mechanical, photocopying, recording, or otherwise, or stored inany retrieval system of any nature, without the express written permission of the publishersand authors.Email: queenshrconference@gmail.comDisclaimerThe views expressed in this report and within the audio-visual presentations are those of thespeakers alone. They do not represent the views of the organisers, Queen’s UniversityBelfast, or any of the funders.Copyright © 2013 Queen’s University Belfast and authors. 5


[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013KINDLY SPONSORED BYTHE SCHOOL OF LAW at Queen’s University Belfast has a proud heritage datingback to 1845. The School remains a top-flight institution, which is perennially in the top-tenUK law schools (ranking 7 th the RAE 2008) and the leading law school on this island.THE HUMAN RIGHTS CENTRE at Queen’s University Belfast supports acommunity of researchers who have a well-developed reputation for leading scholarship inthe area of human rights law. Under the auspices of the Human Rights Centre, staff havedeveloped research which has informed and continues to impact human rights debates, policyformation and judicial reasoning.THE POSTGRADUATE STUDENT CENTRE at Queen’s University Belfastoffers a unique facility for postgraduate students, providing a range of facilities, trainingopportunities and support, as well as events and workshops to maximise the postgraduateexperience and assist postgraduates to develop a range of transferable skills. As part of itsPostgraduate Researcher Development Programme, it offers financial support to student-ledinitiatives.QUEEN’S ANNUAL FUND was established in May 1999 to support and enhance allaspects of the Queen’s experience for students. Unrestricted funds are raised annually fromgraduates and friends of the University. They are used to fund projects that enhance thestudent experience by making a real and tangible difference to students, champion projects ofa transformational nature and a one-off specific initiative or start-up costs rather than offerrecurring funding.Copyright © 2013 Queen’s University Belfast and authors. 7


[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013OVERVIEWOn Wednesday 13 November 2013 the Human Rights Centre, Law School at Queen’sUniversity Belfast hosted a one day conference entitled ‘Challenging the Oppression ofLawyers in Times of Conflict’.The aim of this one day conference was to ignite debate on the issues that lawyers face duringtimes of conflict, the impact of these issues from a human rights perspective and potentialways to address these issues. It sought to engage a holistic approach that draws from conflictexperiences across the globe which at are at various stages in their progression towardspeace. In doing so we welcomed Key Note speaker Richard Harvey and ten panellistsrepresenting the Basque country (Iratxe Urizar), China (Dr Ting Xu), Colombia (ProfessorSara Chandler), India (Simarjit Kaur), Northern Ireland (Professor Kieran McEvoy), Nigeria(Professor Simon Uchenna Ortuanya), Palestine (Andrea Becker), Russia (Professor PhilipLeach), Turkey (Deniz Arbet Nejbir), and South Africa (Judge Essa Moosa).The conference was attended by 100 delegates, including experts and students fromacademic, legal and activist backgrounds, who contributed to the discussion by providingsome thought-provoking questions and remarks. Over the course of the day the conferenceconsidered ‘Challenging the Oppression of Lawyers in Conflict: A European Perspective’,‘Challenging the Oppression of Lawyers in Conflict: An International Perspective’ and‘Improving the Protection of Lawyers in Times of Conflict’. During these discussions,particular focus was placed on the institutional protection, or lack thereof, of lawyers duringtimes of conflict.This conference report provides a reference for the issues discussed. It includes a writtencopy of the papers presented, screenshots of the PowerPoint presentations used during theconference and links to select audio-visual records of the event.Copyright © 2013 Queen’s University Belfast and authors. 9

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013OFFICIAL CONFERENCE PHOTO© Hannah RussellConference Speakers and representatives from the Human Rights Centre, Law School atQueen’s University Belfast (November 2013)Copyright © 2013 Queen’s University Belfast and authors. 10

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013CONFERENCE AIMIn times of conflict it is common for severe oppression to infiltrate every aspect of life as aresult of both State and non-State actors’ actions. Those in a position to challenge theoppressors, such as lawyers, are often subjected to systematic discrimination and violenceduring times of conflict. Such oppression deprives lawyers of their fundamental rights.The aim of this one day conference was to bring together academics, grass-roots experts,legal professionals, and students to learn from each other and ignite debate on the issues thatlawyers face during time of conflict, the impact of these issues from a human rightsperspective and potential ways to address these issues. It sought to engage a holistic approachthat draws from conflict experiences across the globe which at are at various stages in theirprogression towards peace. As such this conference brought together experts who haveexperience in countries which have seen lawyers become specific targets of oppression.Primarily the Basque country, China, Colombia, India, Northern Ireland, Nigeria, Palestine,Russia, Turkey and South Africa.The objective of this conference was to tackle five questions:1) How are lawyers oppressed? What is the driving force behind the oppression?2) What support are oppressed lawyers provided with, if any? Do Law Societies andother official bodies provide assistance?3) What role can domestic/regional domestic judicial bodies play in protecting lawyersin these countries? Have they taken action? Has this action been successful?4) How could lawyers be better protected? Are there things that could be improvedwithin the current system? Or does the current system require a radical change?5) Are the changes suggested specific to a particular jurisdiction? Or are there commonissues that lawyers in conflict are facing globally, which could be addressed withsimilar improvements?Copyright © 2013 Queen’s University Belfast and authors. 11


[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013CONFERENCE AGENDA09:00 – 09:15 Registration (Tea/coffee served at the back of the Great Hall)09:20 – 09:30 Welcome Speech09:30 – 10:15 Keynote Speech by Richard HarveyMr Harvey’s speech focused on his vast experience of conflictsituations where lawyers have been the target of oppression.10:15 – 12:00 Lawyers in Conflict – A European PerspectiveFour 20 minute presentations discussed the oppression of lawyerswithin Northern Ireland, Basque Country, Turkey and Russia. Thepresentations were followed by a question and answer session.12:00 – 13:00 Lunch (served in Canada Room, 1 st Floor, Lanyon Building)13:00 – 15:00 Lawyers in Conflict – An International PerspectiveFive 20 minute presentations discussed the oppression of lawyerswithin Palestine, India, Colombia, China and South Africa. Thepresentations were followed by a question and answer session.15:00 – 15:15 Break (Tea/coffee served at the back of the Great Hall)15:15 – 16:45 Improving Protection of Lawyers in ConflictAll speakers discussed how lawyers can be better protected. Thepresentations were followed by a question and answer session.16:45 – 17:00 Closing RemarksCopyright © 2013 Queen’s University Belfast and authors. 13


[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013CONFERENCE PROCEEDINGSKEYNOTE SPEECHRICHARD HARVEY, a barrister in England and Wales since 1971, ischairperson of Garden Court International, London. He was admitted to the New York bar in1982. He specializes in international human rights, international humanitarian law, criminallaw and environmental law. Past chairman of the Haldane Society of Socialist Lawyers, he isalso a member of Bureau of the International Association of Democratic Lawyers (IADL).During 20 years of human rights work in Harlem, New York, he was an IADL delegate to theUnited Nations, counsel to the African National Congress (later the government) of SouthAfrica, conducted human rights investigations in Haiti and in Northern Ireland into theDiplock Court system, supergrasses and shoot-to-kill policy as well as the murders of PatFinucane and Rosemary Nelson. He returned from New York to work on the Bloody SundayTribunal in Derry. He currently serves as counsel at the International Criminal Tribunal forthe former Yugoslavia and, among other activities, is a legal advisor to the NationalDemocratic Front of the Philippines in their peace negotiations with the PhilippineGovernment.Mr Harvey delivered a presentation entitled ‘Interests of State v Interests of Justice:Defending Human Rights Defenders in the Public Interest’.Paper: Benjamin Franklin said: “They who can give up essential liberty to obtain a littletemporary safety, deserve neither liberty nor safety.” Security that makes people moreinsecure and anti-terrorism laws that instils fear in whole communities; some days it feels likewe live in the Vietnamese village that had to be destroyed in order to save it.”Human Rights Defenders are by no means all lawyers. They are all who stand up for therights of local communities, indigenous peoples, ethnic and religious minorities, victims ofdiscrimination and poverty: they are trade unionists, journalists, lawyers, medics, whistleblowers,community activists, the lone parent protecting her child’s right to walk to schoolunmolested by bigots.Human Rights Defenders are under attack around the globe: from Russia’s persecution ofGreenpeace’s Arctic 30 to the murders of the Marikana Miners in South Africa; from tradeunionists executed with impunity in Colombia to governmental and corporate death squadskilling indigenous leaders in the Philippines; from Beijing to the Basque region and fromPalestine to Punjab.Lawyers do not matter more than any other HRDs. But oppression of lawyers provides akind of barometer of human rights. Defenders need lawyers to help protect their lives andliberties. Both in the courtroom and in the court of public opinion, lawyers have a specialCopyright © 2013 Queen’s University Belfast and authors. 15

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013duty to stand up for those targeted by repressive legislation and politically-motivatedprosecutions.When lawyers who do stand-up are murdered with the complicity of the state; when the stateasserts that the interests of justice demand that justice be denied to their families; when thosewho collude in murder operate with impunity; what then? When lawyers who defend humanrights defenders are themselves jailed for the crime of representing their clients; who is left todefend the defenders?It is appropriate that we meet here in Belfast to learn about - and to stand up for - lawyersdefending human rights in the Basque country, China, Colombia, Russia, South Africa, India,Sri Lanka, Turkey and elsewhere. Here, where the British government finally admits that itsown agents colluded in the murder of Pat Finucane almost 25 years ago, yet insists that thepublic interest requires that there should be no public inquiry.Where the “interests of state” are not the same as “the interests of justice,” then it is for thepublic to decide what is in “the public interest”? What is a human rights lawyer to do?My first encounter with the oppression of lawyers was in 1976 when I met some of thelawyers involved in the Baader-Meinhof Red Army Faction trials in Federal Republic ofGermany. Law after law had been passed restricting the right of their clients to choose theirlawyers. At their invitation, I observed the trial on behalf of the Haldane Society, I met withlawyers and reported back. On my return I was interviewed by a very hostile BBC reporter,which taught me my first important lesson about when, whether and on whose terms a lawyershould engage with the media: always be ready for them to be conservative and hostile;always be better prepared than they are; and always answer the human rights questions thatare most important, whether the reporter asks them or not.International MechanismsIn those days, there was no UN High Commissioner for Human Rightshttp://www.ohchr.org/en/aboutus/pages/highcommissioner.aspx and no UN Human RightsCouncil Special Procedures. UN Special Rapporteurs today provide an internationalnetwork to hold governments to account, today their mandates include:• Independence Of Judges And Lawyerswww.ohchr.org/EN/Issues/Judiciary/Pages/Complaints.aspx• Situation Of Human Rights Defenderswww.ohchr.org/EN/Issues/SRHRDefenders/Pages/Complaints.aspx• Promotion And Protection Of The Right To Freedom Of Opinion And Expressionwww.ohchr.org/EN/Issues/FreedomOpinion/Pages/Complaints.aspx• Rights to Freedom of Peaceful Assembly and of Associationwww.ohchr.org/EN/Issues/AssemblyAssociation/Pages/Complaints.aspx• Torture And Other Cruel, Inhuman Or Degrading Treatment Or Punishmentwww.ohchr.org/EN/Issues/Torture/SRTorture/Pages/model.aspxCopyright © 2013 Queen’s University Belfast and authors. 16

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013• Promotion And Protection Of Human Rights While Countering Terrorismwww.ohchr.org/EN/Issues/Terrorism/Pages/SRTerrorismIndex.aspx• Rights of Indigenous Peopleswww.ohchr.org/en/issues/ipeoples/srindigenouspeoples/pages/sripeoplesindex.aspx.Arbitrary Arrest and Detention of HRDs may be reported to the UN Working Group onArbitrary Arrest and Detention:www.ohchr.org/EN/Issues/Detention/Pages/Complaints.aspxThe UN also has a number of Independent Experts whose mandates cover a variety ofhuman rights issues, including:• Independent Expert on human rights and the environmentwww.ohchr.org/EN/Issues/Environment/IEEnvironment/Pages/IEenvironmentIndex.aspx• Independent Expert on the promotion of a democratic and equitable international orderwww.ohchr.org/EN/Issues/IntOrder/Pages/IEInternationalorderIndex.aspx• Independent Expert on human rights and international solidaritywww.ohchr.org/EN/Issues/Solidarity/Pages/IESolidarityIndex.aspxBasic PrinciplesThe Human Rights Council holds annual hearings in Geneva and the Rapporteurs andIndependent Experts provide annual reports to the UN detailing country visits they havemade, thematic issues they have investigated and correspondence they have had withMember States.Rapporteurs’ websites provide other guidance, e.g., definitions of “human rights defender”(UN General Assembly Resolution 53/144, 8 March 1998: Declaration on the Right andResponsibility of Individuals, Groups and Organs of Society to Promote and ProtectUniversally Recognized Human Rights and Fundamental Freedoms); and links to helpfuldocuments like the Basic Principles on the Role of Lawyers, some key sections of which Iinclude here.Regional MechanismsInternational Mechanisms protecting HRDs are complemented by a number of regional ones.• In Europe, the Council of Europe Member States subscribe to the European Conventionand compliance is subject to rulings of the European Court of Human Rights (currently ahotly debated issue for reactionary forces in the UK). The Council of Europe also has aHuman Rights Commissioner with responsibility for promoting and protecting HumanCopyright © 2013 Queen’s University Belfast and authors. 17

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Rights Defenders in their work across Europe:www.coe.int/t/commissioner/activities/themes/hrd_en.aspThe European Union has its own Guidelines on Ensuring Protection for Human RightsDefenders:www.consilium.europa.eu/uedocs/cmsUpload/GuidelinesDefenders.pdfIn addition, OSCE publishes its own “Human Rights Defenders and National Human RightsInstitutions” www.osce.org/odihr/18960• In The Americas, the Inter-American Court of Human Rights rules on alleged violationsof the Inter-American Convention. In addition, the Inter-American Commission onHuman Rights receives complaints has a Human Rights Defenders Unit with its ownRapporteur.• In Africa, the African Commission on Human and People’s Rights is established by theAfrican Charter on Human and People’s Rights. There is no all-Africa court of humanrights but *** West African States are bound by the decisions of the Court of Justice of theEconomic Community of West African States (ECOWAS).• Asia lacks any regional human rights enforcement mechanism. HRDs depend oninternational human rights NGOs and on national human rights commissions, where theseexist.Civil Society’s ResponseThe role of Civil Society has grown massively in the last 40 years. I list here a small numberof international and domestic NGOs that focus on human rights monitoring and reporting.You will easily be able to point to dozens I have omitted for lack of space. In the 1970s and1980s the number of NGOs began to grow exponentially. At first, apart from the Anti-Apartheid Movement and Greenpeace, most were very cautious about getting too closelyinvolved with public demonstrations or non-violent direct action (NVDA) which many feltmight damage their “credibility,” their fundraising capacity, or both.Worldwide increase in NGO activism has made human rights violations more visible.Increasingly NGOs work together on common issues, such as Climate Change or theCoalition for the International Criminal Court.Sources of InformationIncreased reporting of attacks on HRDs has helped to focus international attention.The Inter-American Commission documents murders, extra-judicial executions & forceddisappearances; attacks and threats; criminalisation of HRDs; abusive use of force againstsocial protestsCopyright © 2013 Queen’s University Belfast and authors. 18

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013The UN Special Rapporteurs on Human Rights Defenders and the Independence of Judgesand Lawyers have joined forces to publish their findings and recommendations.Getting hold of this information is all too easy. The question is what you do with it. If it isjust used to provide source materials for your thesis, it is not going to do anyone else muchgood.What Can You Do With This Information?JOIN: NGOs large and small, local, regional and international. They all do a massiveamount of work but even the biggest ones depend on volunteers. Join one and become a partof it. For example:http://www.amnesty.org/en/human-rights-defendersinfo@frontlinedefenders.orgHaldaneORGANISE: Conferences like Queen’s University Belfast “Challenging Oppression ofLawyers in Times of Conflict” help to organise resistance to repressive regimes and supportfor beleaguered colleagues. Organise yourselves, as the QUB students did or join forces withothers, as the Haldane Society did with Amnesty International and the European Associationfor Democracy and World Human Rights in London last year.These are some of the issues highlighted in the Conference Report, just published, whichincludes direct testimony from witnesses who were brought from the Russian Federation,Colombia, Palestine, the Philippines, Dagestan and Turkey. The report provides constructiveexamples of the best ways to respond to these threats.Colombia CaravanaENGAGE: There are many ways in which to engage with the issues. One is by sendingdelegations, as the Colombia Caravana has done in 2008, 2010 and 2012. A new Caravanawill go in August 2014. In their last report, the Caravana stated they were: “unable to discernimprovements to the problems faced by human rights lawyers and defenders.”They found that: “Lawyers, judges and other actors in the legal system continue to besubjected to threats, attacks and assassinations … A substantial number of these threatsoriginate from paramilitary groups. “[The] justice system still fails to adequately investigateor prosecute perpetrators, resulting in a rate of impunity which for the most serious crimes isstill measured at 97%.”Copyright © 2013 Queen’s University Belfast and authors. 19

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013You Are Not AloneACT: Together with NGOs such as those in consultation with the Economic and SocialCouncil of the UN (ECOSOC), such as:IADL. I have worked with the International Association of Democratic Lawyerssince the 1970s and we have organised countless fact-finding missions, conferencesand seminars. Every five years we hold our International Congress. Next year it willbe in Brussels, bringing 800 lawyers from over 50 countries to exchange experiencesand plan future work on a broad range of major issues confronting human rights andthe rule of law today, from the Right to a Health and to a Clean and HealthyEnvironment, to the Protection of Lawyers and Democratic Peoples’ Justice.L4L Do a remarkable job, supporting cases of 66 lawyers in 20 countries. They sendobserver missions to trials in Turkey, hold annual awards seminars to promoteunderstanding of threats to our colleagues and they report regularly to UNRapporteurs through the Special Procedures discussed above. They also publish anddistribute widely the UN Basic Principles on the Role of Lawyers.They Shall Not Be AloneINVESTIGATE: A retired English High Court Judge, Sir Henry Brooke, chairs the Alliancefor Lawyers at Risk: “In this country lawyers can challenge public institutions or powerfulvested interests in the courts without putting themselves or their families at risk. Sadly, insome countries this is no longer true. In such places lawyers are regularly subjected to threats,physical attacks, and even abduction and “forced disappearance”, simply for doing theirprofessional duty. In Colombia alone, 25 lawyers are killed each year.“Peace Brigades International UK Section reports that: “Between 2002 and 2012 theColombian Prosecutor-General’s Office recorded over 5,200 instances of attacks on lawyers,ranging from threats to physical attacks and homicides.24 lawyers were killed or disappeared in 2011, and four lawyers were killed between January1 and February 7, 2012.”15 lawyers have been killed in Colombia by the end of October, 2013. So far as we know,nobody has been arrested. Accompanying lawyers and other human rights defenders in theseand other countries shows the world that they are not alone and that we can make a differenceby helping to investigate cases their governments fail to prevent or collude in committing.Pat FinucaneAnd REPORT: When Governments refuse to inquire into collusion between the State and itsagents, we can hold our own inquiries and publish our own reports. Governments will go togreat lengths to hide their guilt, as in the case of Pat Finucane, murdered almost 25 yearsago by collusion between the State and its agents:Copyright © 2013 Queen’s University Belfast and authors. 20

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Successive British Governments have spent millions upon millions of pounds of publicmoney and wasted year after year in their determination to deny the Finucane family and thewider community the public inquiry they and we demand. The government’s excuse: publicinquiries are expensive and time-consuming!The only conclusion we can draw is that: “despite all that is now known about the Finucanemurder, there remains something so shameful that governments are determined to hide it atany cost.” Jane Winter, former head of British Irish Rights Watch.And that shameful thing can only be “the level at which there was prior knowledge of themurder and explicit or implicit sanction of it by those in authority.”Rosemary NelsonRemember Rosemary Nelson, likewise killed through collusion between the State and itsagents: "There cannot be public confidence in any government agency that is guilty ofcollusion or connivance with regard to serious crimes. Because of the necessity for publicconfidence in government agencies the definition of collusion must be reasonably broadwhen it is applied to such agencies."That is to say that they must not act collusively by ignoring or turning a blind eye to thewrongful acts of their servants or agents or by supplying information to assist those servantsor agents in their wrongful acts or by encouraging others to commit a wrongful act.” JudgePeter CoryThe Rosemary Nelson Inquiry Report noted a pattern of activity that increased the threat toNelson, including an assault on her by RUC officers, the leaking of intelligence, and threatsmade to her clients: “There were omissions by state agencies, which rendered her more atrisk and more vulnerable. The two agencies of the state that had ample knowledge ofRosemary Nelson were the RUC and the NIO.”What Can You Do? And When Will You Do It?Examples of International Days of Action abound, such as UN Human Rights Day on 10December and the Day of the Endangered Lawyer on 24 January.As law students we are given mnemonics in the form of acronyms. Often they stay with youyears after you have forgotten what they stood for but I hope you will not forget this one. Letme introduce you to my friend JOE AIR:J-OINO-RGANISEE-NGAGEA-CTI-NVESTIGATER-EPORTCopyright © 2013 Queen’s University Belfast and authors. 21

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Let me tell you just a little more about what he has meant to me.JOIN: because there is strength in numbers and because you learn more working with agroup than you can ever find out on your own. Join Amnesty, Greenpeace, Committee on theAdministration of Justice, the Pat Finucane Centre, Liberty, IADL, Haldane Society, the BarCouncil Human Rights Committee or the International Action Team of the Law Society.ORGANISE: I have never been threatened directly but it is a disturbing experience whenyou realize they are watching you. This came home to me in New York when I wasapproached by a young Belfast man who had been pulled in by the FBI. He told them he wasapplying for political asylum and they assumed he would want one of the long-standing IrishAmerican firms to represent him. “No,” he said, “I want Richard Harvey.” Without missinga beat, they said: “Oh yes, is he still living on 121 st Street, in Harlem?”In other words, “We do not only know where you live, we keep tabs on your lawyer too.” Atthe time, my own immigration status was under review and I joked with my client that Imight be deported before him. To prevent that, I organized with the Brehon Irish LawSociety and the National Lawyers Guild to make sure we had another lawyer on the case andthat neither of us was deported. He is still in New York, I am happy to say.ENGAGE: Picket the Russian Embassy to demand the release of Greenpeace’s Arctic 30.But do not stop there, write and ask to meet the Ambassador. You will be surprised whatmay happen. In the 1970s, as I mentioned at the beginning, I went to Germany on behalf ofthe Haldane Society because German defence lawyers were being prevented fromrepresenting their clients. On my return, we asked to see the German Ambassador. Helooked out of the window at the large crowd of our colleagues and asked me and the twoHaldane members who had been allowed in: “Who are all these people?” His jaw almost hitthe table when I answered: “They are all lawyers.”Demand to speak with the Ambassador. If they say no, ask for the Deputy Chief of Mission.If no again, then ask for the Legal Attache. Always remember that part of their job is to writeback to their home country and report on local concerns. Engaging the opposition in this waycan bring results.ACT: These days, writing letters sometimes seems old fashioned. The power of organisingthrough the social media is massive and petitions, emails and electronic means can beenormously effective, as can letters to newspaper editorial pages.INVESTIGATE: Organising and participating in international fact-finding missions andobserving political trials can be extremely effective. I have done it all my life in many partsof the world. Sure, when you turn up to observe a trial you may find they’ve adjourned thehearing. Does that have anything to do with your being there? Of course it does.REPORT: And when you get back from your mission, or even while you are there, write,blog, publish, use all the electronic means at your disposal to get the information out andsupport our friends who are under attack. You may save their lives.Some organizations you might think of joining right now might be:Copyright © 2013 Queen’s University Belfast and authors. 22

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Greenpeace28 Greenpeace activists, a photographer and a videographer are being charged by the Russianauthorities with crimes they did not commit. Please sign this urgent petition to the RussianAmbassador in London and demand the immediate release of these peaceful protestors.https://secure.greenpeace.org.uk/page/s/tell-russia-to-free-our-activistssource=pc&subsource=a30gad02&gclid=CJv4icb_3boCFUiN3god6zkAvAAs one of our colleagues in the Philippines writes: “It is in fearful anticipation of tragicscenarios such as these why our staff and activists go through great lengths, putting their lifeand liberty at risk, to take action at the frontlines of climate destruction – whether that's in theforests of Sumatra or the hostile waters of the Arctic. I would like to believe this is part of thelarger narrative why 30 of our colleagues remain in detention in Russia. And it is our hopethat they find courage and inspiration to endure the injustice they are going through, movingthe planet away from the clear and present danger posed by runaway climate change.“We thank you all for the messages of solidarity and support you have sent our way at thistime. More importantly, I would urge you to use this moment to remind your governmentsthat every investment in fossil fuels is an investment in death and destruction. The impact ofnew coal plants being built or new oil fields being developed - do not remain in theirimmediate vicinities - they translate into epic humanitarian disasters and tragedies, as wecontinue to witness in the Philippines.”Pat Finucane CentreThe Pat Finucane Centre does grass-roots investigating of human rights abuses as well aspublishing impressive reports such and providing the background research for AnneCadwallader’s excellent new book Lethal Allies: British Collusion In Ireland.Law SocietySome remarkable work is being done today by “establishment” professional bodies that yearsago considered human rights advocacy rather too “political.” Thankfully times havechanged.The Law Society’s International Action Team is currently recruiting pro bono lawyers andstudents, 100 of whom have already received training. Their work includes:Partnership in Peace Brigades International’s Alliance for Lawyers at Risk.Letter-writing, press statements, amicus curiae briefs, diplomatic delegations andcampaigns.Challenging enforced disappearances, the burning down of lawyers’ offices, physicalattacks on lawyers and revocation of their licences.Copyright © 2013 Queen’s University Belfast and authors. 23

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Tackling ongoing, persistent violations and acting on new phenomena, like thegrowing cynical use of defamation or criminal proceedings to financially ruin orstigmatise lawyers and deny representation for their clients and their clients' causes.This is the Law Society of England and Wales. So far as I am aware, this is not part of theNorthern Ireland Law Society’s programme – yet. Perhaps you can change that.Bar Human Rights CommitteeThe BHRC (England & Wales) carries out a wide range of activities, including:International fact-finding investigations, trial observations and reports on humanrights situations;Building capacity through training in advocacy, human rights and humanitarian law;Provide legal resources to help strengthen institutions which have a direct impact onthe promotion and protection of human rights and the rule of law;Monitor human rights violations and raise awareness of the plight of victims ofhuman rights violations through the media and public meetings;Participate in international litigation through our International Litigation Unit;Liaise with governmental and independent NGOs working in the same field;Train and support judges, lawyers, academics, civil society activists and othersconcerned with human rights;Assist individuals and groups to hold states accountable for abusive practices and toensure adherence to international human rights norms and practices.Missions have been organised to many countries and regions including Afghanistan,Israel/Palestine, Syria, Bahrain, Turkey, Iran, Armenia, Belarus, Russia, Azerbaijan,Kazakhstan, Mexico, Colombia, Jamaica, South Africa, Zimbabwe, Uganda, Tanzania,Malawi, Sierra Leone, Nigeria and Sudan.The BHRC is a member of the Alliance for Lawyers at Risk, the Attorney General’sInternational Pro Bono Committee and the Justice Working Group of the Euro-MediterraneanHuman Rights Network.Again, so far as I am aware, the Northern Ireland Bar Association does not have a separatehuman rights committee.Copyright © 2013 Queen’s University Belfast and authors. 24

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013PowerPoint Presentation:Copyright © 2013 Queen’s University Belfast and authors. 25










[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013PANEL DISCUSSION I: LAWYERS INCONFLICT – A EUROPEANPERSPECTIVEDR SYLVIE LANGLAUDE is Assistant Director of the Human RightsCentre, School of Law at Queen’s University Belfast. She joined the School of Law atQueen’s in September 2008. In 2006 she completed a PhD thesis at the University of Bristolon the right of the child to religious freedom in international law, which was published byBrill in 2007. She is an editorial board member for Religion & Human Rights: AnInternational Journal (Brill) and a case note editor for the Oxford Journal of Law andReligion (OUP). She has published in the areas of human rights, religious freedom, freedomof expression and children’s rights, for journals such as the International and ComparativeLaw Quarterly, the Human Rights Law Review, the European Human Rights Law Review,the International Journal of Children’s Rights and the Human Rights Quarterly. In 2013 shewas awarded a small grant by the British Academy to investigate ‘Religious employers whodiscriminate: the French legal response’.Dr Langlaude chaired this panel.PROFESSOR KIERAN MCEVOY is Professor of Law and TransitionalJustice and Director of Research at the School of Law, Queens University Belfast. He iscurrently leading a three year ESRC funded (£490,000) comparative study of lawyers inconflict and transition – conducting research in South Africa, Israel\Palestine, Cambodia,Chile and Tunisia. He was previously employed in the NGO sector before entering academiain 1995. He has been a Visiting Professor at New York University, Berkeley California,Cambridge, London School of Economics and spent a year as a Fulbright DistinguishedScholar in the Human Rights Program at Harvard Law School. He has a long history ofhuman rights activism having served as a board member of the Committee on theAdministration of Justice for much of the last two decades, as well on the board of NIACRO(the Northern Ireland Association for the Care and Resettlement of Offenders) andCommunity Restorative Justice Ireland. He has written or edited six books and over fiftyjournal articles and scholarly book chapters.Professor McEvoy presented a paper entitled ‘Lawyers in the Northern Ireland Conflict andTransition’ on the situation in Northern Ireland.Abstract: Using Northern Ireland as a case study this presentation examined the ways inwhich lawyers responded to the professional and ethical challenges of entrencheddiscrimination, sustained political violence and the transition from conflict. In particular, itexamined key moments or 'critical junctures' in the conflict and transition - the civil rightsperiod, the use of Emergency laws (including internment without trial), the operation of theDiplock Courts and the response of the legal profession to the murders of some of itsCopyright © 2013 Queen’s University Belfast and authors. 35

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013members. It also explored some the aspects of the local legal culture which (the presenterargues) contributed to a culture of 'quietism' within the legal community, and a version oflegal professionalism which was contingent, socially constructed and amounted to a usefulfiction which obfuscated a collective failure of moral courage.Paper: This is a twenty minute presentation based on a twenty-five thousand worddocument. This can be obtained through emailing k.mcevoy@qub.ac.uk.The title of this presentation is ‘Lawyers in Times of Conflict: Neutrality, Professionalismand the Culture of Quietism in Northern Ireland’. The background to this paper was somework that I started with a former colleague, Stephen Livingstone, a few years ago. We wereinterested in the impact that human rights discourses have had on the legal culture inNorthern Ireland historically and as the transition was taking shape. We conducted interviewswith a range of judges, barristers, solicitors and others. We did a lot of a primal workparticularly around the civil rights campaign and other historical events. This project has ledto another project, a comparative project, which I am in the middle of doing right now.The point of this paper is to put it in context the kind of human rights defenders that RichardHarvey was so eloquently speaking about. These people are heroes by the nature of what theydo. The point that I want to make is that often, people are self-evidently heroes are actuallyswimming against the tide within their own profession. People who would be eulogised inany other profession are viewed in some conflicted contexts as troublemakers, as people whoare upsetting the apple cart, as “political” lawyers. In that context they are marginalised andthey do not receive the support from their colleagues within the legal community that onemight expect. That is one of our key findings in a Northern Ireland context and something wewere very interested in.Historical Institutionalism and Critical JuncturesTo summarise the theoretical contents of the article briefly and to put this presentation into atheoretical context, rather than to simply describe the role of lawyers today, the article iscalled “What Do Lawyers Do During the War?” I looked at literature in political science,which is called historical institutionalism. This is basically the way institutions emerge, thehistory of institutions. It charts the relationship between individuals and the institution itself,often the institution in which they work. To state the obvious, in a small place like NorthernIreland, personalities matter. The personality of the Lord Chief Justice, the personality of thePresident of the Law Society or the Bar Council matters. They shape what goes on. Thisliterature avoids the assumption that things are inevitably going to get better. For a longperiod in the Northern Ireland conflict things did not get better. The assumption that thingswere a thing of history and things would never regress, that was not necessarily the case. Thisliterature looks at that timing. Timing in history, like comedy, is everything. In particular thisliterature was useful to me. When you are trying to organise a huge amount of historical datayou need to find conceptual clear ways of summing it up. This literature provided that to me,which was to provide critical junctures.Critical junctures are essentially key moments in the history of a particular jurisdiction or inthe history of a particular institution. People who work within an institution will be able to offthe top of their heads name three or four key moments in the history of our institution. If youCopyright © 2013 Queen’s University Belfast and authors. 36

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013look closely enough at those key moments then you see inside the soul of the machine. It ishow people deal with these key moments of history that provide insight. So instead of havingto describe each and every event in the legal history and the moments leading up to it, I wasable to pull out a number of key moments and look at what they did.Sociology of the Legal ProfessionThe other theoretical literature is sociology. There is very rich literature on this. One of thethings that interested me is the notion of arrogance, you will be shocked by this, but somelawyers are actually a little bit arrogant. There is something within the strain of ourprofessionalisation that makes us a little bit arrogant. It is sociological, but when you look atit in the issue of marginalisation of human rights offenders. It has more serious connotationsthan that, the arrogance that goes on.There is rich literature within the sociology of the legal profession, particularly regarding the“cause” lawyering. These are lawyers who are radically political about what they do.Historically this would have been in the USA, a left-wing progressive style of lawyering.Actually now in this literature we see a lot of right wing cause lawyers, particularly on theright to bear arms in the USA and the abortion question. So basically there are right and leftversions of cause lawyering.Legal CultureThe theoretical aspect of this paper is about legal culture and what is legal culture? Legalculture of any jurisdiction and the underlying traits are the forms of knowledge, the norms,the values, the unarticulated premises that are culturally and historically ingrained in theprofessional discourse. This is what it means to be a lawyer in a particular context. Thevariables that I decided that made up the Northern Ireland legal culture were the smallness ofthe jurisdiction, the conflict (the divided nature of the society which led to the creation ofpolitical blocks), the relationship between those political blocks and the State, and thedurability of legal positivism. This is something that I have to acknowledge. I have worked atQueen’s University Belfast for the last twenty years. I did my undergraduate degree here.Historically we, Queen’s University, educated the vast majority of lawyers that work in thisjurisdiction. We, Queen’s University, also have some responsibility to bear for the versions ofprofessionalism that have emerged in the jurisdiction as a result.Critical Junctures in Northern Ireland Legal CultureThe key moments that I drew upon to explore the legal change and moral values in legalculture were:The year of the civil rights campaign and the introduction of internment. These arecharacterised as failed mobilisation.The introduction and embedding of emergency legislation, which is referred to as theDiplock Process.Copyright © 2013 Queen’s University Belfast and authors. 37

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013The normalisation of emergency legislation and the way lawyers navigated aroundthat.The murders of Pat Finucane and Rosemary Nelson.The Judicial Review that was taken by now Mr Justice Tracy and Barry McDonald,on the oath that was required for people to become a QC in the jurisdiction.There are a lot of lawyers who did good things in this jurisdiction. However, using a broadbrush, the civil rights campaign in Northern Ireland drew from the American experience.Unlike the American experience, when you look at the detail and personnel involved in civilrights campaign in Northern Ireland, it was not led by lawyers. Lawyers were not anywherenear as prominent as one would have expected in the emergence of a civil rights campaign.That is with some exceptions.Civil Rights and InternmentWhen internment was introduced to the jurisdiction there was little organised resistancewithin the Northern Ireland legal community to the introduction of internment. There weresome debates and a few small left wing organisations within the community that discussedinternment at length, but broad brush, lawyers got on with their business. They got on withtheir business of representing clients during this internment period. Internment was a“bastardised” version of justice. No one claims they were anything else. Tom Hadden arguesthat the British Exchequer made it extremely lucrative to represent people in internmenthearings and the lawyers took the money and got on with the work. The big argument isshould we give legitimacy to this facade of justice? Yet those debates did not take place toany great extent within the legal community in Northern Ireland. It is something Tom Haddencharacterises as a failure of law and failure of lawyers. Lawyers did not step up to the plate inany organised fashion on the issue of internment.Emergency Law, Diplock Lawyering and the Embedding of LegalPositivismOn the issue of the Diplock system, we did see a number of small organisations emerge overthis period. But by and large lawyers got on with it and, it is important to say, providedexcellent technical lawyering to their clients, they represented their clients very effectively.One of the reasons at the local level for why the Super Grass system fell apart was theexcellent representation by lawyers. This included exposing unreliable evidence and so forth.Another important point in terms of progressive interventions in Northern Ireland wereinterventions by lawyer organisations from across the water. For example, the HaldaneSociety did a lot of work. Other lawyers’ organisations began to discuss and critique theoperation of the Super Grass system in particular. Again using a broad brush, the argument Imake in the paper is that our local judiciary were embarrassed that these discussions werehappening in the legal community on the mainland. That had a greater impact than the workof some of the smaller leftist organisations within Northern Ireland. The point I am making isthat lawyers were technically excellent in defending their clients, but using a broad brush,they did not mobilise and highlight that what was happening was an outrage and not justice.That was not part of the notion of professionalism. A lawyer’s job was to represent theirCopyright © 2013 Queen’s University Belfast and authors. 38

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013client to the best of your abilities, not to be involved in politics. Not to be involved in thatstyle of politics. There were some exceptions – the emergence of the Committee of theAdministration of Justice, but it was peace activists driving this. It is a broader civil societyorganisation; lawyers were not dominating these organisations. It was hard work gettinglawyers involved. You asked lawyers to come along to events, to speak at events andsometimes, apart from the usual suspects, reaching out to the broader legal community washard graft.Murders of Lawyers and Collective ConscienceTurning to the murders of Pat Finucane and Rosemary Nelson. What happened when Pat wasmurdered, you have an extremely technical response from the local Law Society and BarCouncil. This was a lawyer being murdered in a context where, even from the get-go, strongallegations of collusion and the State being involved, as the British Prime Minister has nowacknowledged the State was involved. The people providing the intelligence and carrying outthe murder were agents. There is no argument on that. But at the time there was a verytechnical response from the local community. The people that do human rights work are thesmall, small percentage of the overall legal community. The vast majority of solicitors inNorthern Ireland are small practices getting on with conveyancing and not doing criminaldefence work. Even people doing criminal defence work are small. Even when I interviewedcriminal defenders they felt that they were banging their head against a brick wall trying toget the Law Society to engage. What you had was lots of international condemnation of boththe Law Society and the Bar Council for not stepping up and calling for a public inquiry intoPat Finucane’s death. There was a similar issue arising around Rosemary Nelson’s death.What happened after this was, a progressive force managed to get enough names andsignatures together to get an Extraordinary General Meeting (EGM) called of the LawSociety. In the face of opposition from the leadership within the Law Society, this ultimatelyresulted in a vote of one of the biggest attended meetings ever for the Law Society in favourof the motion, which called for a public inquiry into the deaths of Pat and Rosemary.This was a key moment in the jurisdiction of where people mobilised to that extent. It was inthe context of after the ceasefires. So the politics are different. What is interesting from theinterviews of lawyers who were present at that EGM is that the nature of the discourse at thatmeeting was legal arguments. People were deliberately referring to legal arguments andinternational standards, they did not make politically based arguments. It was lawyers whowere able to handle the politics of a very difficult moment in a legal fashion. Part of the fear,part of the culture of riotism that grew in Northern Ireland was that this would be highlydivisive. This would break down sectarian head count and we are best not discuss thesematters. Lawyers are very capable of discussing these matters. It is what we do – presentarguments and reason arguments. So that culture of riotism was broken in general.ConclusionThe first big question is what do we expect from lawyers? To take a quote from one of theinterviews with a senior lawyer, “what did you expect, they are lawyers.” That is a goodquestion, what do we expect? Is it a lawyer’s job and professional responsibility to be ahuman rights activist? To be out there mobilising in the name of the rule of law? Or is it theirCopyright © 2013 Queen’s University Belfast and authors. 39

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013job to represent their client? These are very different versions of professionalism, verydifferent notions of what a lawyer’s job is. This is something that should be considered –what is the role of lawyers in conflicted times? Is it to represent your client to the best of yourability or should there be other additional responsibilities?Another thing to stress is these were not easy times of lawyers. There were real threats topeople’s lives and not just to Rosemary and Pat. There were attacks on the judiciary, therewere attacks against the DPP, a number of our judiciary were killed, we had a law lecturerfrom Queen’s University who was an elected political activist killed by the Irish RepublicanArmy (IRA), we had a law student killed. These were not easy times. There is a lovely phrasein a story from DP Thompson about the “enormous condescension of history.” When we lookback at history it is very easy to spot all the flaws in others. I tried very hard in this paper notto do that. To recognise the difficulties and difficult choices that people were faced with.There was a very strong element in Northern Ireland about the durability of legal positivism.The law, of the law, of the law, of the law. There is no politics, just the law. Legal educationmay have changed, but that is the version I got. It was all sections, sub-sections and statutes.The interesting thing that struck me in the interviews, the progressive lawyers’ (human rightsdefenders) way of engaging in these debates was as positivistic as their more conservativecolleagues on the bench. It was hard work in interviews to get them to extract theirexperience away from legalistic analysis. When I was highlighting political notions, theywere referring back to statutes. Part of it was it safe territories for lawyers, to stick to legalpositivism. Another part was how they were taught. They were not encouraged to extractyour experiences and be a bit more reflective. The significance of time is also obviously afactor. If you are in the middle of a war and you have to baton down the hatches, it becameeasier with the ceasefire.To finish, we are in a big debate at the moment. Negotiations are on-going about whether ornot we should have a truth commission. One of the things I would like to see is that we dohave some sort of truth recovery mechanism it is important to not only focus on the actions ofthe 18 year old, that is one part of our past. Drawing from the South African context, it is alsoimportant to look at our institutional history - to look at our institutions and what role did ordid not play. My idea, if I could design a nice truth commission, one of the themes that welook at would be lawyers. Look at what lawyers did and did not do. These are very importantinstitutional players.The final question is what relevance, if any, does the Northern Ireland experience have forother jurisdictions?Copyright © 2013 Queen’s University Belfast and authors. 40











[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013IRATXE URIZAR is a lawyer and member of the Basque Observatory of HumanRights since 2002. She specialises in European Arrest Warrant and extradition cases, whereshe works as an assistant lawyer in the proceedings against Basque prisoners in differentcountries. She takes cases concerning human rights issues to international court andinstitutions, such as the European Court of Human Rights in Strasbourg, United NationsHuman Rights Committee and United Nations Committee Against Torture.Ms Urizar is a delegate of the Association of Basque Lawyers Eskubideak, which is amember of the European Democratic Lawyers (AED-EDL) and has a role in the CommissionDefence de la Defence. She is also a member of European Association of Lawyers forDemocracy and World Human Rights (ELDH).Ms Urizar has been a delegate of the Human Rights Council in Geneva since 2003, where shepresents reports and declarations. As a Human Rights activist she has taken part in severalforums such as the European Social Forums in London, Athens, Malmo and Istanbul.Ms Urizar presented a paper entitled ‘Attack to Lawyers, Attack to Defence: BasqueLawyers’ on the situation in the Basque country.Abstract: This presentation considered the oppression of Basque lawyers. It looked at thedifficulties arising due to the lack of a comprehensive definition for the term terrorism byconsidering the Martin Scheinin Report and how laws are tailored according to whom theyconcern. In doing so it considered how due process and fair trial rights are tampered with,using limitations in law reserved for exceptional circumstances as justification. Thispresentation also considered how Basque lawyers have become the ‘uncomfortable witness’.For example, being criminalized by association or public opinion and the oppression theyface as a result. Consequently, Basque lawyers are being denied the protections that are andshould be afforded to them by virtue of due process and a fair trial. To conclude, it proposedthat a change to the status quo would be assisted by joint work between academics andprofessionals and also through more support within the legal system.Paper: At the time of dealing with the subject that now brings us to this conference,Lawyers in Conflict - a European Perspective, we are facing several dilemmas. The first one,how is it possible for the lawyers to be persecuted for doing their work, how is it possible toattack them for performing their profession, in the twenty-first century Europe, bearing inmind the existing number of treaties and agreements to safeguard the human rights, signedand ratified by our States. But also, we must face the excuse of these attacks not only as asingle attack, but also, as an attack by which all the citizens are affected as it involves theright to defence. That means, we are not here only to talk about the personal perspective ofthe persecution of a person, but also about what it means when the profession of thepersecuted and criminalized is the protection and defence of the rights of others, but also andoften he is the first and sometimes the only witness of the rights violations committed againstprisoners and arrested people.So, I will try to explain how the lawyer's work can be criminalized, and thus how can anyperson or group be criminalized. I will keep myself to explain how is the situation in theplace from which I come from, the Basque Country, where there are experiences regardingthe legal reforms, especially in relation to the fight against terrorism and in pursuit ofCopyright © 2013 Queen’s University Belfast and authors. 51

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013State Security, which have been transferred to other European States. That is, other stateshave also adopted this kind of legislative reforms which allow such ambiguous accusationsand the extension of the term terrorism to a degree that could include public activities and,up to the moment considered by the authorities, they were perfectly legalCriminalisation of the Activity of LawyersThe first element we face is the ambiguity and vagueness of offenses that can be consideredterrorism. That is, the absence of a definition for the term terrorism, and the definition of thevarious activities considered terrorism, are very ambiguous. So, if the activity is not defined,but it is a terrorist activity, we find that it will depend on who performs the action to beconsidered as a terrorist activity or not, being the term terrorist a tailored suit for specificareas or groups, irrespective of the activities carried out. It will more valuable whoperforms these activities rather than the activity itself. What it is known as the Criminal Lawof the Enemy.Lack of definition of the terrorism term:-Martin Scheinin already showed concern over this fact. The activities thatwere called terrorists could not be considered as such. Interview "they do notwant to admit that there is something wrong in their law. The Spanishdiplomatic said that he rejected all my recommendations. It is significant tosay to the ONU that you reject the recommendations, it is a negative signal”.And it warns that " the vagueness of certain provisions on terrorist crimes inthe Spanish Penal Code carries with it the risk of a “slippery slope”, i.e. thegradual broadening of the notion of terrorism to acts that do not amount to,and do not have sufficient connection to, acts of serious violence againstmembers of the general population. This is particularly worrying in light ofthe measures triggered by the classification of crimes as terrorism: theapplication of incommunicado detention; the exclusive jurisdiction of theAudiencia Nacional; the applicability to terrorist suspects of up to fouryears of pre-trial detention; aggravated penalties; and often alsomodifications in the rules related to the serving of sentences.- The lack of definition makes possible a terrorist activity not to be such, butit will depend on who performs it. That is, the same activity, depending onwho performed, it will be or not a terrorist offense, making in this way thedefinition of "terrorist" a tailored suit for whom it is of interest to wear.- Also, the development and exacerbated extent of the term and the ambiguityof the same, will make us face definitions explicable only in the "legallaboratory". We meet people accused of practicing "peaceful terrorism" orbeing members of a terrorist group recognizing that they neither could notknow it, but considering that this knowledge is not necessary.Lawyer of the Confidence of the DetaineeCopyright © 2013 Queen’s University Belfast and authors. 52

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013But also and keeping to the particular attack of the lawyers, the attack to the Basque lawyers,the presumption of crime, the presumption of guilt is already given by the same articleitem 527 of the Criminal Proceeding Code which regulates the incommunicado detention ofthose arrested for terrorist offenses. In the same, it is also stated that while the arrested hasthe right to have the presence of a lawyer, he will be assigned with a public defender, he willnot be able to appoint the lawyer he wishes or the one he trusts on. This has been criticizedby the international organizations and the response from the Spanish authorities, althoughquite vague, it has been the suggestion of some involvement by the lawyers with theirclients, accused of terrorism. It should be noted though, that while this fact has also beencriticized by the Basque lawyers, the arrested under an incommunicado detention is notallowed to have a private interview with his lawyer, even if this was a public assignedlawyer, so the figure of the lawyer under a incommunicado detention is merely a witness ofthe existence of a person arrested, signing (or not) a police statement.However and assuming the importance of explaining the framework that allows the impunityfor these attacks and the legal-terminology construction of the criminalization, it is that wesee the practical expression of all this construction, that each element plays an important rolein the gearing, which are all the links in a chain, which still looking less important thanothers, all of them are necessary for a final construction. Therefore, on analyzing thesespecific examples of attacks we will understand all this apparatus for the exceptionalmeasures. Several examples: how to build an accusation and a procedure. These cases,together with the various attacks suffered by the Basque lawyers in the exercise of theirprofession, were reported in the past International day for the Endangered Lawyer. Thisday is celebrated all over Europe (this has been the third edition) organized byassociations of lawyers such as AED-EDL and ELDH. Every year, more organizationsin defence of the rights, join this celebration. So, the date of January 24, commemoratesthe day in which four labour lawyers and a trade unionist were killed in Madrid in 1977,date in which the persecution the Basque lawyers suffer was denounced in Europe.I will next point out some of the most recent cases of criminalization (arrest,imprisonment and release of the Basque lawyers).The Importance of the Role of the MediaCase of Joseba AgudoAgudo finds out that he is being arrested, having breakfast at home and getting ready togo to his office. Shocked on listening to the state news given by the public television how alarge group of Guardia Civil policemen, fully armed, is arresting him. As the reporter readingthe news states, Joseba Agudo may not be the only person being arrested, and considers thepossibility of undertaking further arrests in the coming hours, as the police operationremains open.What began under this peculiar situation, followed with an European Arrest Warrant againstAgudo (whose home residence was located at Hendaye, Basque Country, under the Frenchadministration) to finally be sent to Spain and imprisoned in Villena, Alicante, south -Copyright © 2013 Queen’s University Belfast and authors. 53

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013west of the Spain and 800 km away from the Basque country. After two years and a halfunder custody, he was absolved on April 9, 2012. The demand from the fiscal was nineyears in prison.Another Paradigmatic CaseCase of Iñaki GoioagaWe were in a meeting of democratic lawyers when news appeared in the media and somecolleagues called us to tell us what it was beginning to filter by the press. I must accept thatwe did not know what to do in that surrealistic situation. Goioaga, after a fierce campaignwithin the Spanish means, was imprisoned. He was arrested on June 13, 2009, andremained in prison until January 30, 2011. He stayed a year and seven months, 353 km awayfrom EH. In October 2012 the trial was held and he was absolved together with two morepeople imputed with him in sentence of October 31, 2012. The fiscal requested for him 25years imprisonment. At present, he is a senator in the Spanish Senate.Cases Haritz Escudero and Haizea ZiluagaOnce again, the media gave all details not only about his arrest, but also about his privatelife, in addition to the fact that his image captured the newspapers for days. On this occasion,the accusation was quite striking: they were accused of advising young people about whattheir rights were, in case of being arrested, that is, what a lawyer makes. They were separatedfrom the case the June 14, 2012 process, not reaching the trial.Common elements to be analysed:- Judicial secrecy, performances secrecy- Interception of communications- The essential role of the media: the criminalization. Attack of thepresumption of innocence. Their full coloured image and details of their lives,in the press.- Professional offices registration without any guaranteeConsequence of the Policy of DispersalPrison (for the specific cases of Joseba Agudo and Iñaki Goioaga): the implementation ofexceptional measures which are also applied to the Basque political arrested people:- dispersion/isolationCopyright © 2013 Queen’s University Belfast and authors. 54

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Kilometres every family has to travelWeekly 1223.06 km Monthly 5299.95 km Yearly 63599.47 kmExpenses supported by every familyWeekly 377.94 euro Monthly 1637.75 euro Yearly 19653.00 euroKilometres made for the visits corresponding to the entire groupWeekly 914,854 km Monthly 3,964,367.33 km Yearly 47,572,408 kmTotal expenses for the families Weekly 282,700.98 euro Monthly 1,225,037.58euro Yearly 14,700,450.96 euro- abuse of the preventive detention: up to four years without a judgementFreedom (cases of Haizea Ziluaga and Haritz Escudero): Essential role of the media.Or rather, the lack there of.Absolutions.Why this Criminalisation?The reasons for this criminalisation are:- Send the message to the Basque political prisoners not being able to have adecent defence, prepared, fair and without being questioned by otherideological elements- Witnesses of violations, first hand witnesses of the attacks these prisonerssuffer- Denouncement of torture- Denouncement of violations within the prison: on being away from theirhome, their environment, they are more vulnerable to attacks that may becommitted by the prison officials or by other prisoners.Finally, and because of the proximity in time of the case and the proximity to the person, aswe are talking about our office, I would like to explain briefly a case occurred last October30.That day, the police from the Guardia Civil, ordered by the National Court Juez EloyVelasco, arrested 18 people belonging to the Herrira activity and proceeded to theregistration and seal of their offices in Hernani (Gipuzkoa province), Bilbao (Bizkaiaprovince), Pamplona (Navarre province) and Vitoria (Araba province).Copyright © 2013 Queen’s University Belfast and authors. 55

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Once the images were seen, one would think that it was the arrest of armed people, anoperative of great danger for these agents. Well, the arrests were carried out only at the siteof Hernani, in other sites nobody was arrested and, in fact, the Bilbao site was empty.Herrira is a popular movement that, in an absolutely public way, works for the rights ofprisoners, searching the peace. The whole of their activity was public and have been theorganizers of the largest demonstration, in recent years, in the Basque CountryOur professional office was shared with Herrira, although clearly separated. So, whenthe Guardia Civil entered, the lawyer who could act as a witness was able to talk to thejudicial secretary as it was clear that it was a lawyers’ office and did not enter the same.However, they took the server with a copy of all our files, many of them with cases that weredealt at the same High Court ordering the search.We send our complaints, one after another, to the investigating judge of the case, the LawSchool Dean called also to remind the judge that our office was not under investigation andcould not read, neither analyze nor open our files. Also the Association from MadridALA sent an urgent call, as well as the defence de la defence commission of AED. However,the judge sent us a fax on October 23 at 12.38 letting us know that all our files were to becopied on 23 at 10:00. That is, we were notified after undertaking a cloned copy of our files.That is the behaviour of the judges of the Court.ConclusionsThe importance of the denounce: national and internationalThe importance of collecting data and to objectify the abusesTo participate in international organizationsTo explain, to share experiences: to learn and to show what it has been helpful to us.Copyright © 2013 Queen’s University Belfast and authors. 56









[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013DENIZ ARBET NEJBIR is a Kurdish human rights activist and lawyer. Hestudied law at Ruskin College Oxford and the University of Warwick. He has alsosuccessfully completed, with distinction, a LLM in International and European Union Law atthe Vrije University of Brussels. He has been working voluntarily in a variety of capacitiesunder the umbrella of the Kurdish Federation in the UK over the last 13 years. He was theChair of the Kurdish Community Centre in London 2003 to 2005. Additionally, he was theChair of Kurdish Federation in the UK 2009 to 2011, which lobbies to raise awareness of therights of Kurds in Turkey. He has worked in London as a lawyer, specialising in Asylum andImmigration law. He is currently doing his PhD at Queens University Belfast. His researchassesses the situation for the Kurdish minority right in Turkey and the Basque minority inSpain, with reference to the lessons that can be learned from Northern Ireland. On the basis ofthis assessment, his research will establish egalitarian and sustainable reforms for the issuesconcerning the Basques in Spain and the Kurds in Turkey.Mr Nejbir presented a paper entitled ‘From Political Execution to Undefined ImprisonmentSentences: The Situation of the Kurdish and Turkish Lawyers in Turkey’ on the situation inTurkey.Abstract: Turkey has become an open prison for lawyers since 2011, as it has imprisonedmore lawyers than any other country in the world. The current repression and intimidationtowards lawyers in Turkey has its roots in the politics of the denial towards the existingminority and multiculturalism within Turkey.A historical analysis demonstrates that Kurdish lawyers, along with some Turkish lawyers,were specifically targeted by the State in the 1990s due to their dedication to establishing acollective legal conscience. This included acting as “cause lawyering” to raise awareness onthe breach of human rights abuses (such as, torture, extra-judicially killing, forciblyevacuation of villages, disappearances) in the Kurdish region, which was governed by StateEmergency Law between 1987-2001. The Kurdish lawyers have paid a high price for theiractions. Five have been brutally killed and many of them have been arrested, particularlybetween 1993-1994.Although Turkey’s application of accession to the European Union brought hope that Turkeywould become a more democratic country, the repressive policies of Turkish Governmenttowards Kurdish lawyers have systematically escalated since November 2011. It was at thistime that the mass arrest took place of 46 lawyers acting on behalf of Abdullah Ocalan, theKurdish Workers Party’s leader. The abuse of due process has resulted in the arrest of fifteenadditional lawyers who were seeking to represent the already imprisoned lawyers.This paper demonstrated that mass arrests towards lawyers are politically motivated andillegal. The procedural irregularities and the weakness of the evidence suggest that Turkeyhas breached right to liberty (Article 5 of the ECHR), right to fair trial (Article 6 of theECHR), right to family (Article 8 of the ECHR) and the UN Basic Principles on the Role ofLawyers, as well as its own national law.Copyright © 2013 Queen’s University Belfast and authors. 65

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013PowerPoint Presentation:These lawyers are Human Rights Defenders, victim of the conflict and more importantly arehostages of the peace process.Copyright © 2013 Queen’s University Belfast and authors. 66






[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013The State strongly believes that human rights defenders betray the State. The brutal executionof Kurdish lawyers demonstrates the practical implication of the State’s intention. Kurdishlawyers, like many other human rights defenders in the Kurdish region, were kidnapped bythe so called “unknown perpetrators” and their corpses were often found in the suburbs of acity. The forensic examination showed that they were killed by torture. The message wasclear: the human rights defenders cannot have the power to defend themselves. If this is thecase, how can they protect the public? They can neither support them nor join them.Copyright © 2013 Queen’s University Belfast and authors. 72

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013It is important to highlight that the attacks against members of the Diyarbakir Bar occurredafter the first peace talks between the PKK and Turkey collapsed.Copyright © 2013 Queen’s University Belfast and authors. 73


[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Whenever lawyers raise awareness with regards to human abuses they will be targeted. Forexample:Copyright © 2013 Queen’s University Belfast and authors. 75

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Between 1999 and June 2005 the attacks against lawyers continued in the form of physicalattacks, abuse and degrading practices. In addition, there were some panel actions against thepress statements lawyers made at times. However, none of these cases have resulted inanything.After 2005 the physical pressure continued to be applied, but were implemented under ajudicial disguise, with the enforcement of the 1 June 2005 laws. Before examining this law, itis important to stress that defence lawyers of Mr Ocalan have been particularly at risk. TheEuropean Court of Human Rights (12 th May 2005 Grand Chamber Judgment) condemnedTurkey for its violation of Mr Ocalan’s rights of defence. This was on the grounds that in thevery first consultation there was a masked person present during the consultation within ahearing distance. This was found to be a violation of the right to fair trial. However, only 15days later, on 1 June 2005 all consultations were not only listened to, but openly taperecorded. The only difference was that such a violation is now possible thorough a specialnational law which will be examine below.Copyright © 2013 Queen’s University Belfast and authors. 76

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013What was the discriminative nature of this law? It should be underlined that since this lawwas enforced the only consultations that have been heard and tape-recorded have been theconsultations between Mr. Ocalan and his lawyers and the only lawyers dismissed from theirduty have been Mr. Ocalan’s lawyers.More than one hundred criminal cases were opened against at dozens of lawyers whoprovided legal representation to Mr. Ocalan, for their “complicity with a terroristorganisation.” These allegations are based on Article 314 of the Turkish Penal Code andArticle 6 and 7 of Anti-Terrorism Law (Turkey is frequently condemned by the ECtHR withregards Article 314 of Turkish Penal Code and its Anti –Terrorism Act). This systematicjudicial harassment against these lawyers appeared to be exclusively aimed at weakening andsanctioning the rights of the defence, by punishing defence lawyers for the mere exercise oftheir legitimate professional activities. This is a clear violation of the UN Basic Principles ofRule of Lawyers. The charges were based on tape records between Mr. Ocalan and his lawyerduring their meetings in the Imrali prison, press articles, interviews in the media and publicdeclarations made by his lawyers. The court found some of them not guilty. Nonetheless,further criminal cases were launched against those same lawyers, as well as others under thesame charges in violation of the principle “non bis in idem”. Furthermore, several lawyerswere banned from their profession for one year, and nine lawyers were sentenced toimprisonment. Lawyers are also punished for not humiliating their client by calling him, MrOcalan.Copyright © 2013 Queen’s University Belfast and authors. 77











[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013The historical situation in Turkey provides some guidance as to why lawyers have beensubjected to persecution. In Turkey there was a state of emergency from 1987 to 2002.During that time a lot of people were persecuted in symbolic trials before the State SecurityCourt. Thousands of people were suspected of links with the Kurdish Workers’ Party (PKK)and executed. Thousands of people were tortured. According to official statistics 30,000people had lost their lives, 25,000 of them Kurds. More than 4,000 villages were forciblydisplaced.Kurdish lawyers have not only brought legal battles in the court room, as was the case inNorthern Ireland, but more importantly, they have mobilised in support of civil and politicalrights in Turkey. This is to challenge the State’s systematic persecution towards Kurds and toraise international awareness of the violations of human rights that have occurred in theKurdish region of Turkey. By using the jurisprudence of the European Court of HumanRights they have succeeded in naming and shaming Turkey’s treatment of Kurds. As a result,the Turkish State considers these lawyers have betrayed Turkey, for internally informingpeople about their rights and representing defendants. Also for diminishing Turkey’sreputation internationally.When we look at prolonged pre-trial detention in Turkey, there is a lack of equality of arms,lack of prosecution evidence, insufficient independence and culture of show trials. This allmakes it difficult for lawyers to prove their innocence.The above facts show that Kurdish lawyers, alongside Kurdish politicians have becomehostages of the peace process. A quick glance at the historical analysis justifies this claim.The first peace talks were started between the PKK and the Turkish State on 20 March 1993.The ceasefire collapsed after a month. Kurdish politicians and lawyers paid a high price forthat. The Kurdish MP, Mehmet Sincar, was assassinated in Batman on 4 September 1993.Following this seven Kurdish MPs were arrested on 2 March 1994. A number of brutalexecutions and arrests of lawyers of Diyarbakir Bar Association also occurred.The Oslo Peace discussions started in September 2008 and collapsed in 2011. After thecollapse of these discussions five Kurdish MPs and 20 Mayors were imprisoned. Whatfollowed was the unprecedented arrest of 46 of Mr Ocalan’s lawyers. This shows that theState considers lawyers as one of the main factors in the peace process. Therefore, the Statebelieves that if it arrests lawyers and puts pressure on them along with Kurdish politicians,the Kurdish movement would weaken and the State could force its demands on the PKK.Also, the State believes that if it gets the most active people in the legal and political sense,there will be no one to defend Kurds or talk on their behalf. That is the reason why theTurkish State targets Kurdish or leftist-Turkish lawyers in Turkey.Copyright © 2013 Queen’s University Belfast and authors. 88


[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013PROFESSOR PHILIP LEACH Professor of Human Rights Law atMiddlesex University, a solicitor, and Director of the European Human Rights AdvocacyCentre (EHRAC), also based at Middlesex University. He has extensive experience ofrepresenting applicants before the European Court, in particular against the UK, Turkey andRussia. His recent human rights research projects have been commissioned, or supported, bythe Nuffield Foundation, the Leverhulme Trust, the Equality and Human Rights Commission,the OSCE and the Council of Europe. He is the author of ‘Taking a Case to the EuropeanCourt of Human Rights’, 3rd ed., Oxford University Press, 2011. He is a member of theIndependent Advisory Panel on Deaths in Custody (which provides advice to the MinisterialBoard on Deaths in Custody). He is on the Editorial Board of European Human Rights LawReview, and is a Trustee of the Media Legal Defence Initiative (MLDI) and the HumanDignity Trust. He has conducted human rights training for the Council of Europe, the OSCE,the British Council, the Foreign & Commonwealth Office, the Law Society of England andWales, the Arab Lawyers’ Union and for various NGOs.Professor Leach presented on the situation in Russia. 1Abstract: This presentation discussed the oppression of lawyers in Russia, notably in theNorth Caucasus region. Against a backdrop of egregious human rights violations beingcommitted with impunity by state authorities in the region, including torture, extra-judicialexecutionsand enforced disappearances, this presentation considered the various forms ofobstruction and intimidation of lawyers which are common, including attacks, direct threatsand other indirect forms of harassment. It discussed the various tactics adopted by the lawenforcement bodies, the lack of support for lawyers from the bar associations and therepressive criminal justice system.Key Points of Paper:Context in North Caucasus (NC)Repeated and systemic violations of human rights committed by members of powerfullaw enforcement agencies in context of fight against armed groupsClimate of impunityFailure of rule of law and lack of independence of judiciary and a criminal justicesystem imbued with prosecutorial bias (0.7 -0.8% acquittal rate), which is designed tohand out guilty verdicts. Role of Ramzan Kadyrov as Chechen President. Work of EHRAC & Memorial in bringing ECHR cases from the north Caucasus –regarding disappearances, extra-judicial executions, torture cases, artillery and airattacks European Court of Human Rights (ECtHR) – more than 200 judgments findingEuropean Convention on Human Rights (ECHR) violations against Russia in thenorth Caucasus region (and documented by NGOs eg Amnesty International, Human1 Professor Leach would like to thank Aikaterini-Angeliki Akestoridi and Mariam Uberi (EHRAC interns) fortheir excellent research assistance.Copyright © 2013 Queen’s University Belfast and authors. 90

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Rights Watch, Memorial) – Aslakhanova v Russia, 2012 (failure to investigatedisappearances is systemic)Sources: interviews with lawyers working in the North Caucasus region; an excellentAmnesty International report ‘Confronting the Circle of Injustice’ (March 2013);other reports by national/international NGOs and by United Nations/Council ofEurope mechanismsNature of Oppression of Lawyers/Human Rights DefendersDisappearancesIbrahim Tsurov disappeared in Chechnya in 2003 on way to Grozny Garrison MilitaryCourt.Remains uninvestigated.ECtHR found substantive & procedural violations Article 2 of the ECHR (Tsurova vRussia, 2008).Government argued that the case was an abuse of right of petition, as applicationswere seeking to bring charges against RF and produced no documents from domesticcase files.Tsurov had been stopped in a car by large group of armed men in daylight and putinto car boot.The State acknowledged that he had been arrested by the Ministry of Interior.ECtHR found he was taken by State agents during unacknowledged security operationThere has been no news of Tsurov since.MurderNatalia Estemirova – a human rights defenders for Memorial (including ECHR cases)Abducted in Grozny 2009 and body found in Ingushetia..Stanislav Markelov (Moscow, 2009). Had represented journalist Anna Politkovskayaand family of Elza Kungaeva a Chechen woman killed by Colonel Yuri Budanov.Article 2 procedure:Attacks on Lawyerso Investigation only opened 2 months after abduction.o Key eye-witness only questioned after 15 months.o Failure to verify whether Tsurov taken by Ministry of Interior.o Investigation suspended and resumed 4 times.o Lengthy periods of inactivity.Sapiyat Magomedova, Dagestan.In 2010 beaten at police station when seeking access to client and was hospitalised.When she lodged complaints against the police officers she was warned that sheshould withdrawCopyright © 2013 Queen’s University Belfast and authors. 91

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013She herself was prosecuted (violence against government official and insultinggovernment official), subjected to travel restrictions (not to leave Dagestan)Both cases closed on basis that they were irreconcilable.Direct ThreatsCommon problems:1. Warning from law enforcement (LE) officers, or through the bar, or via relatives workingin the municipal authorities or LE bodies – often veiled threats.2. Lawyer under pressure to withdraw their licence voluntarily, or disciplinary complaintsmade to Bar Association by investigators, prosecutors or judges, or Ministry of Justice.3. Pressure on lawyer’s relatives – charged with crimes.4. (Rarer) lawyer is charged with crime or beaten up.Death ThreatsOne case in which a flier was distributed in Dagestan threatening blood vengeanceagainst members of armed groups and their accomplices – including lawyers.Indirect ThreatsApplicants to ECHR subjected to pressure:o To abandon complaints.o Asked where they are getting help from (implying that lawyers who help willbe in trouble with the authorities).o Attempts to influence their opinion of advocates, so they renounce them orchange legal strategy.o By adding new charges or increasing severity of charges.o Discrediting advocate – eg spreading rumours that the advocate assists theauthorities.o Restrictions on their work – eg police officers are present when lawyersspeaking to clients.o Also lawyers are worried that any proactive work they do may result in aworsening situation for clients (ill-treatment, harsher sentences etc).o Some lawyers stopping criminal defence work, or abandoning their legalcareers.There have been systemic problems in North Caucasus during last decade:State bodies (law enforcement & judiciary) implicitly favour this, through a climate ofimpunity.Why does it happen?Copyright © 2013 Queen’s University Belfast and authors. 92

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Because the effect of what defence lawyers do is perceived by the authorities asrestricting or acting as a counter-balance to the unlimited powers of LE bodies.Lawyers are perceived as an obstacle.Support to LawyersIn practice, there is little or no institutional support.Effective impunity of those in high authority.Bar associations are linked to and dependent on the authorities. Would require headsof bar associations to prove their independence and their immunity from intimidation.But they usually want to avoid confrontation with LE bodies and the judiciary.Sometimes there is self-censorship.Support to oppressed lawyers is from NGOs.Joint Mobile Group 2009 Human Rights Defenders from a number of Russian NGOs based outside Chechnya Tto establish permanent presence in Chechnya Come for a period of a few weeks, on rotation Offer legal support to victims, monitor investigation of allegations, collect evidenceetc Won Martin Ennals Award for Human Rights Defenders in 2013 Staff have been threatened and detained, computers confiscated. Founder Igor Kalyapin has been subjected to criminal investigations.Judicial Support?Little support in practice, as judiciary implicitly favours restrictions on or intimidationof advocatesRoutine dismissal of motionsCriminal courts generally upholding conclusions of investigatorsMany cases in North Caucasus with same charges (drugs/possession of firearms)Court practice can be hostile – aggressive rhetoric.How could lawyers be better protected?Expose pressure through independent media and NGOs.Copyright © 2013 Queen’s University Belfast and authors. 93

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013PANEL DISCUSSION I: QUESTION ANDANSWER SESSIONQ. Is there anything in the fact that judges in Turkey, Spain and Russia have not beenpracticing lawyers themselves, many of them are career judges whereas in the UK andIreland all our judges have been lawyers and may have experienced some kind ofharassment and as such would be more understanding. Is there anything in that in thedifference between the civil/common law approaches to the appointment of judges?Deniz Arbet Nejbir (Turkey): In Turkey it is possible to become a judge on the basis ofpassing exams, it is not necessary to actually practice as a lawyer. As a result they tend tofollow the State’s ideoglogy. There was a very interesting survey in Turkey in which judgeswere asked what would be their position if an issue arose between a human rights issue or theprotection of the State. Two hundred judges took part in the survey and 98% chose protectionof the State over the human rights issue.Iratxe Urizar: In the case of the Spanish State to be a judge you have to study law and takean exam to become a judge. Some practice law, some take the exam straight away to becomejudges. The judge system is a hierarchy. The problem is we have these special courts calledAudiencia Nacional. It was created a week after the Public Order Court disappeared afterFranco’s time, it was a public order court from Franco’s time. It was said that we were are ademocracy now and that we would have to finish with this court and the week after theAudiencia Nacional. Within this Court special judges were installed, which did workdifferently from judges generally. Usually we have got the normal jurisdiction where you canbring a complaint to a court and if you do not agree with the sentence you can go higher andhigher. The Audiencia Nacional is part of that. It only takes special types of crime, such asterrorism. It is part of this hierarchy. I have to say that in most countries, all the judges fromthe Audiencia Nacional are very famous. Not because of being human rights defenders,actually the European Court in Strasbourg has said that they do not investigate thosecomplaints. When judges finish their careers in the Audiencia Nacional they like to gointernationally for, example to Colombia, to show how to defend human rights, like JudgeBaltasar Grazon. Although, Strasbourg has said that Judge Baltasar Grazon did not know howto defend human rights when he was a judge in Spain.Professor Philip Leach: I think the system, as I understand it, in the Russian North Caucusesis extremely divisive, in the sense that you have judges and prosecution lawyers on one sideand you have the defence on the other. You also have pocket lawyers. There is a legal aidsystem, but certainly there are situations in the North Caucuses where those brought in todefend the unrepresented defendants are handpicked either by prosecutors or investigators. Sothey are pocket lawyers. So it is a very divisive system, something that the report that Imentioned that was published yesterday by the Commission on Human Rights picks up on. Ithink the question posed is accurate. Although, the picture in the North Caucuses is sofundamentally flawed that it is perhaps one relatively small element of the big picture, whichis deep corruption.Copyright © 2013 Queen’s University Belfast and authors. 94

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Q. Regarding Professor McEvoy’s observation about the different phases historically ofcertain struggles and the extent to which lawyers find themselves exposed to threat andattack at different stages. I do not know if there is any overarching theory that we couldeven begin to dare to think about describing here. When Mr Nejbir makes the pointthat there is a correlation between peace talks and the oppression of lawyers. WhenProfessor Leach talks about the kind of universal campaign to oppress universal NGOsand anyone who challenges the oppression - is it possible and/or helpful to determinecertain patterns that we can, perhaps predictively, begin to train people about, warnpeople about and support them with as they become activist lawyers in trying to protectpeople’s human rights?Iratxe Urizar (Basque Country): I think there is a pattern; I think it is not only aboutlawyers who are oppressed or NGOS. In certain moments the State and its mechanisms forrepression, they do jump. There is a jump. Usually certain kinds of repression in certainmoments, this kind of oppression changes. In the case of lawyers and in the case of theBasque country, most of the cases I have shown happened together, in the same year, thenafter nothing after 5 years, 10 years again. It seems a coincidence that it happens when thereare peace talks or a trial for peace talks, but I do not think it is a coincidence. It is a differentkind of oppression. To speak about the objectives that the government is following to dothese specific kinds of arrests or specific ways of repression they can have different actions.Professor Philip Leach (Russia): As I said earlier, I think there are patterns. I was struck byan event early this year or last year that the Law Society held on the Kurdish situation. Therewas a Kurdish lawyer there from Essex, who did the Kurdish cases in Strasbourg. I wasstruck by the similarities in Chechnya. Here we are in Chechnya in perhaps 10 or 15 yearsbehind the Kurdish situation. The discussion in that meeting was that there are fewprosecutions as I understand it going ahead in southeast Turkey. There is the uncovering ofthe mass graves that Mr Nejbir also mentioned. The mass graves have not been discovered inChechnya yet, but we are possibly starting to get to that point. Certainly the prosecutions arenot happening. There are patterns in the sense that we can see similar problems and similarresponses. For example, those involved with the North Caucasus issue should be looking atthese other conflicts and the way lawyers are engaging or not engaging and learning fromthem. There are certainly patterns in that sense, very much so.Deniz Arbet Nejbir (Turkey): The oppressive mechanisms of the State either makes peoplebe passive or encourages them to determine their goals. When the peace process started inTurkey, specifically the current peace process, we can see psychological, physical andinternational attacks against Kurds. For example, the three Kurdish activists killed in France ayear ago. Also the State media, they want to make the other side as weak as they can, in orderto make them join the peace process and show the international community how Turkey is‘democratic’. They do not give them any right, but push them to accept certain ‘charity’ andto accept the situation. In that sense, there is also their response. For example, they arrestedMr Ocalan’s lawyers - more than 500 lawyers between 22 and 25 years old who expressedinterest or were actively representing him. There is also a crazed response within the societyto fight a legal battle, a political battle, to stop the State opposition, but the State response isto use mass arrests in Turkey. More than 9,000 people have been arrested since 2009. In thatsense, resistance also brings a lot of risks for themselves. How many professional people aregoing to take that risk is the question?Copyright © 2013 Queen’s University Belfast and authors. 95

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Professor Kieran McEvoy (Northern Ireland): To stress again when I was deploying thisnotion of critical junctures it was a way of working out my own thoughts not to get lost in thedescriptive detail of what happened within our own jurisdiction. It does work whenorganising and assessing what went on in the legal culture in Northern Ireland. Two things Iwould like to add to the discussion. One, I think I stressed in the presentation that we shouldnot read assumptions about that this is a linear history and that we are basically as a societymoves out of conflict and towards transition, that automatically that the State will stopharassing lawyers. That even at this stage of our transition, our war has been over for sometime, as Richard said in his earlier remarks I too have heard of similar patterns of abuse oflocal lawyers by the police. The same kind of things that happened with Pat Finucane andRosemary Nelson. We are hearing that lawyers continue to be subjected to that style ofintervention. So we should not make an assumption that just because we move into atransition that that all just goes away. That style of engagement between the State andlawyers would just go away. The second and related point is that the State is not a monolitheither. There may well be elements of the security infrastructure in any State that do not likeelements of the transition and will therefore revert to the old tried and trusted technique andmethods, including methods of engagement and diminishing lawyers, despite the fact that wehave a broadly successful political transition.Statement from the audience: My name is Simon Uchenna Ortuanya. I teach InternationalHuman Rights Law and coordinate an International Human Rights Law project in Nigeria. Ithink that what is going on today is not peculiar to Europe or to America, but is also presentin Africa. I recall when the Richard Harvey mentioned that Africa has a Human RightsRapporteur, at least on paper. I want to also say that the African region does have the AfricanHuman Rights Commission, which is part of the African Union. I think that what ishappening in other parts of the world is also taking place in Africa I feel that talking about itat lawyers in times of conflict, lawyers also suffer in times of peace, or apparent peace.I can say clearly that human rights lawyers have gone to prison in Nigeria more than anyother Nigerian history. There are several older lawyers that have become victims becausethey are friends of those who are oppressed and those subjected to all forms of deprivation.There are cases where lawyers have become detained, because they went to defend theirclient, because they have gone to make a case, and as a result have become wrongly detained.Africa has developed a large volume of literature and we have huge and successful lawschools and lawyers involved in human rights practices. We owe a lot of gratitude to theinternet. Without that some of us would not be here today. It would be a huge thing for usthat we become part of what is going on in the world as far as human rights are concerned.Africa, and Nigeria particular, has had to deal with human rights violations for lawyers fromseveral perspectives. First we have lawyers as administrators – have lawyers as thosedirecting the affairs of the State, as governors of the State. The political leaders have becomeessentially lawyers through the State. They have become murdered for challenging the State.In south-east Nigeria, there is a governor who is a lawyer.I want to streamline the activities of the State and the duties of the Judges to follow the strictrules of law. There are other States where lawyers are also governors and they try to insist onthe rule of law. But the point I am trying to make is that we also have a body of cases wherelawyers are subject to violence and where lawyers who are defending become victims. Thisconference provides an opportunity to see what is happening in other parts of the world andtry to learn as well by bringing our own ideas and perspectives.Copyright © 2013 Queen’s University Belfast and authors. 96

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013In Nigeria we are experiencing a lot of disappearances. About one month ago a high profilelawyer was kidnapped. I feel that a conference of this nature will help Africa, will helpNigeria. We are currently going through all manner of terrorism in Nigeria. It is time forlawyers to speak up. Those lawyers that do speak up do suffer a lot because of it. It is also acall to action for use of force from the African continent.Statement from the audience: My name is Niall Murphy. I am a solicitor at a practice inBelfast city centre – KRW Law (formally Kevin Winters and Co). To pick up the invitationfrom Professor McEvoy as to ongoing intimidation against lawyers against lawyers inNorthern Ireland presently. It is our regretful experience that there is ongoing actions ofintimidation and harassment, which have actually intensified. I should also say that I amspeaking on behalf of my firm, but I am aware of other incidents of intimidation andharassment of other solicitors, but it would be inappropriate for me to comment on theirbehalf. Also barristers, there was a barrister this year who was stopped under anti-terrorismlegislation on his way to the Derry/Londonderry court. That itself was an appalling incident,which I know is being reflected upon by the Bar Council of Northern Ireland.To contextualise our practice - we as partners all came from Madden and Finucane Solicitors,set our own practice up in 2001. From then we have been involved in some significant cases.We dealt with the failed prosecution of ‘Stormont-Gate’ where it can now be historicallyasserted that the security services collapsed the local Government in Northern Ireland on theallegation that there was conspiring. That case failed on the prosecution. We were central to itin relation to fingerprint evidence, which as it transpired did not exist. We also representedSean Hoey who was accused of the Omagh bombing and successfully challenged what was aflawed forensic process, with regards to Low Copy Number DNA, which led to that practicebeing disused globally. We dealt with the Robert McCartney murder, which again resulted ina full prosecution. Also, the Northern Bank robbery, which was a miscarriage of justice. Sothroughout that experience, almost exponentially, we have noticed intimidation. Initially fromLoyalists and, as Mr Harvey correctly alluded to, it has regrettably been the future ofNorthern Ireland’s society that the State has used laws and paramilitaries as proxies toeffectively murder those that have challenged the State.In 2004 we were served with a police message advising that the Samaritans that the RedHand Offenders were going to attack two groups of solicitors. One group was Kevin Wintersand Co, due to the fact that they are still dealing with dissident Republicans. The attacks weredue to take place in the next few days. I am not aware of anyone who was ever arrested forthat, there were certainly no prosecutions. But that was the first warning shot across ourbrows. As I say, another firm of solicitors I know received the same message.Then the sphere began to move towards oblique allegations about our honesty. I attended aserious crime scene dealing with a person detained under terrorist legislation. Quiteregressively on the 15 January 2007 I was told by a police constable that I was a liar. Heasked my client how he could be represented by me, as he alleged, I was a liar. I was stunnedby the allegation, but we took an aggressive approach to that action. I commenced libelproceedings and received an apology by the Deputy Chief Constable in May 2009, whoapologised unreservedly and acknowledged that at all times I was acting in the best interestsof my client.Copyright © 2013 Queen’s University Belfast and authors. 97

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013In December 2009 I attended a Garda station in Monaghan; regrettably it is a cross-borderphenomenon. I am aware of human rights defenders in the south of Ireland who are subject tosuch remarks. I was advised you are not allowed to attend the police interview in the south ofIreland. You only get to speak to your client after he has been interviewed. I was advised bymy client that he was arrested in respect of a robbery. His first question from the interviewerwas “why are you asking for Kevin Winters and Co? You must be a dissident Republican.They represent Sean Hoey.” Sean Hoey at this time had just been acquitted. I againchallenged the Garda Superintendent in charge of the police station, who assured me no suchremark could have been made. That police interviews were now being tape recorded and thatthe tape record will tell the tale and that my client must be the liar. It was on the tape and welodged a complaint with the Garda Ombudsman and again that was upheld on the 10November 2010. Again the Gardaí settled the proceedings that we issued.Unfortunately in 2011 matters took a very disappointing and grave turn. On 7 November2011 the trial of Colin Duffy and Brian Shivers was due to commence. A very difficult caseand again there was repackaged DNA aspect that were quite labour intensive and factuallychallenging. On the Thursday prior to that my partner Peter Corrigan was advised that he wasto be arrested in respect of an allegation of money laundering. That itself pertained to aseparate incident in September 2011 whereby a client of ours had discharged a penal warrantin respect of a court order two years previous. The satisfaction of that order was challengedby way of judicial review. It was considered by the Lord Chief Justice, who in paragraph 14of the judgment found there is nothing unlawful with regards to the satisfaction of thewarrant. Peter’s actions at all times were supervised by eminent counsel, a QC, along withothers. However it was our opinion, not concerned by the money laundering as a realsubstantive allegation, that this was an attempt by the State to upset and disrupt thepreparation of a significant murder trial. This trial was in relation to the two soldiers killed atMassereene Barracks in 2009.Touching upon Mr Harvey’s comments and what the speakers have infused us to do. Wewere rescued by an NGO. The phone call was received by the police at approximately 11am.Peter was in consultation with counsel. Our office is upstairs from the Committee ofAdministration of Justice (CAJ). I went downstairs and met with staff from the CAJ outlinedthe circumstances, brought all the papers and judicial review judgment down. They were ableto impress on the Director of the CAJ what was happening. To his credit, the Director of theCAJ made an appeal through the media, which was carried at 6pm that night. At 8.30pm wereceived a phone call to say there would be no arrests, and there have been no arrests. So inour eyes it was a direct attempt to divert from the preparation of a serious and significanttrial.In 2012, just after the prison officer Mr Black was murdered, one of our recently qualifiedsolicitors was attending a police station in Belfast dealing with a young person. He waschallenged by the Custody Sergeant - “How can you work for that firm? How can KevinWinters and Co represent those sorts of people? The reason Mr Black is dead is becauseKevin Winters and Co got the individual off on an earlier charge. I’m not a religious man, butwhen the Day of Judgment comes, your firm will have a lot to answer for.” Again we havegone through the civic challenges. We complained to the police ombudsman and that wasupheld. The Custody Sergeant is being reprimanded.Copyright © 2013 Queen’s University Belfast and authors. 98

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013This year, 2013, it is a depressing litany. This year, in the re-trial of Brian Shivers, who hassuccessfully challenged his conviction on appeal, in relation to the Massereene case. I waspersonally accused of interfering with witnesses and there was a representation made by asenior counsel that the presentation by a prosecution witness reeked of concoction. That wasa repackaged application that was originally made in front of Mr Justice Harp. I am pleasedto report two High Court judges effectively refused that application.There is a concerning position ongoing with regards to the appeal of John Paul Wootton andBrendan McConville and again allegations of “IRA solicitors” against our firm. TheSecretary of State and Chief Constable obtained injunctions in August 2013 in relation to 40year old inquest papers. That in itself was a challenge to the devolved administration. Sothere is an ongoing litany, it is very depressing. It is one that we seek solace. We haveinternationally represented this to Congressman Chris Smyth of the American Congress, theHelsinki Commission which deals with North America interests in Europe, the Committee ofAdministration of Justice. But the litany continues and I wanted to put it on the record, asthere have been oblique references to it in today’s presentations. These are certainly thecircumstances with regard to our practice.Copyright © 2013 Queen’s University Belfast and authors. 99


[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013PANEL DISCUSSION II: LAWYERS INCONFLICT – AN INTERNATIONALPERSPECTIVEPROFESSOR JEAN ALLAIN is the Director of the Human Rights Centre,School of Law at Queen’s University Belfast. He completed his studies at HEI – Institutuniversitaire de hautes études internationales – the Graduate Institute for InternationalStudies of the University of Geneva, having received a PhD in 2000. He wrote his Master’sthesis at the Inter-American Court of Human Rights, in San José, Costa Rica, as a Fellow ofthe Organization of American States. In 1996-1997 he clerked for both the President and theDeputy Registrar of the International Criminal Tribunal for the former Yugoslavia. Previousto his appointment at Queen’s University, Belfast, Professor Allain taught at the AmericanUniversity in Cairo, Egypt from 1998 to 2004. In 2008, Professor Allain was appointedExtraordinary Professor, Centre for Human Rights, Faculty of Law, by the Senate of theUniversity of Pretoria, South Africa.Professor Allain is a generalist in public international law with a specialisation in humanrights and an expertise in issues of slavery and trafficking. His current research interest –beyond issues of slavery, trafficking, refugees and international law in the Middle East – isfocused on food security, food safety and the right to food.Professor Allain chaired this panel.ANDREA BECKER has been working in the Middle East for the last 15 years,specifically focusing on human rights and humanitarian law within the Israel/Palestineconflict. Andrea has extensive experience living in the Palestinian refugee camps in Lebanon,where she worked as programme director for a non-governmental organization. Followingher work in Lebanon, Andréa lived in the Occupied Palestinian Territory between 2001-2003,at the height of the Israeli re-invasion of the West Bank, working on refugee-relatedassistance in the West Bank and Gaza Strip. She has worked with Oxfam and Christian Aid.Most recently, Andréa worked as Director of Advocacy at Medical Aid for Palestinians.Andréa's first degree was in international development studies and politics from McGillUniversity in Montréal. Andréa holds a Masters in Middle Eastern Politics from the School ofOriental and African Studies, and an LLM in International Law (with a focus on internationalhumanitarian and human rights law) from Utrecht University. Andrea is currently based inLondon and works as a criminal defence barrister, and is the co-Chair of Lawyers forPalestinian Human Rights.Ms Becker presented on the situation in Palestine.Abstract: This presentation focused on the challenges facing Palestinian lawyers,specifically those engaged in campaigning for human rights in the occupied PalestinianCopyright © 2013 Queen’s University Belfast and authors. 101

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013territory and Israel. The driving force behind any oppression is the ongoing Israelioccupation, but lawyers (particularly in Gaza) are also at risk when challenging human rightsabuses carried out by Palestinian authorities.The efforts to restrict the work of lawyers and human rights defenders has evolved over thelast decade, and has included arrests, threats, raids and the destruction of property and files.More frequently, lawyers face ‘administrative’ hurdles restricting their access to clients,being ‘vetted’, and indeed, their ability to travel internationally. Further, Israeli lawyersworking for Palestinian human rights, while still enjoying substantial freedoms, now facesome restrictions on their work.While some still pursue domestic remedies through Israeli courts, Palestinian lawyersincreasingly direct their efforts on the international stage, working alongside lawyers in otherstates. These include efforts through international courts and protection mechanisms,advocacy, as well as efforts to pursue individuals through what remains of universaljurisdiction legislation in various states. Lawyers around the world can play an important rolenot only in supporting these efforts but in campaigning and providing assistance to humanrights lawyers seeking to bring about change and adherence to international law.Key Points of Paper:“It’s a scene repeating itself in hundreds of Palestinian offices taken over byIsraeli military for a few hours or days: smashed, burned and brokencomputer terminals heaped in piles and thrown into yards; server cabling cut,hard disks missing, disks and diskettes scattered and broken, printers andscanners broken or missing, laptops gone, telephone exchanges thatdisappeared or were vandalized, and paper files burned, torn, scattered, ordefaced - if not taken. And it's all in rooms full of smashed furniture, torncurtains, broken windows, smashed-in doors, walls full of holes, filthy floorsand soiled bathrooms. Here and there, the soldiers left obscene graffiti orletters full of hatred, but compared to the data that was destroyed or taken, theinsults read like poetry. Even the overflowing toilets look more like humanweakness compared to the organized vandalism reflected in the piles ofsmashed computers.It's not merely the expense of the hardware that has to be replaced. The loss isimmeasurable in shekels or dollars. Years of information built into knowledge,time spent thinking by thousands of people working to build their civil societyand their future.”– Amira Hass, Haaretz, 2002Copyright © 2013 Queen’s University Belfast and authors. 102

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013CONTEXT: WHAT DOES ‘PALESTINE’ MEAN – WHERE HUMAN RIGHTSLAWYERS WORK‘Palestine’ most often used to denote the West Bank and Gaza Strip.Palestinians are in wider geographical locations that simply West Bank and Gaza, andhuman rights violations are also not limited to ‘Palestine’ in its ever narrowinggeographic scope.WEST BANK The military occupation is a ‘matrix of control’ (coined by Jeff Halper, ICAHD) –Military Checkpoints, physical roadblocks, closures, closed military zones, curfews,Israeli-only roads, Palestinian communities cut off by separation wall. Internalmovement restrictions – make normal life impossible for Palestinians. Physical barriers are reinforced with a complex set of permits that further restrictmovement internally within the West Bank, and between West Bank and Jerusalemand Gaza. Palestinian land and resources are being systematically stolen, agricultural land beingdeemed a military zone, so no one can enter, then declared abandoned andappropriated. Settlement construction is rapid and ongoing. Thousands of newsettlement units were announced this week. The settlement freeze never was.Increase in violence by (armed) Israeli settlers.Mass arrests in towns and villages, including of children. Thousands held in‘administrative detention’ – no charges, no trial, no legal safeguards, noaccountability, no adequate representation, forced confessions.GAZA STRIPThe Gaza Strip is still under occupation (legally) although the situation is bestdescribed as a blockage.Two of three land borders are sealed off and controlled by Israel, along with the coast,and the airspace. Egypt controls the remaining border, reinforcing Israel’s blockade,limiting what comes in. Currently, 18hours of power cuts, 95% of water considerednot fit to drink according to the World Health Organisation.Gaza is in a continuous state of humanitarian crisis – a crisis which is entirelymanufactured and entirely avoidable.Extra-judicial assassinations (so called ‘targeted killings’), along with shootings ofcivilians along the ‘buffer zone’ inside Gaza and shootings of fishing boats in Gaza’sterritorial waters. There are frequent incursions by the Israeli military into Gaza.These comparatively low level military incursions and attacks are almost routine anddo not make the news. Gaza is still trying to recover from the extensive attacks on itsinfrastructure and civilian population during Israel’s Operation Cast Lead inDecember 2008- January 2009.ISRAELPalestinians inside Israel face discrimination and restrictions; citizenship is not ameasure of protection.Copyright © 2013 Queen’s University Belfast and authors. 103

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Currently ongoing actions to ‘clear’ the Negev (southern Israel) of Beduin. This is theforcible displacement of 40,000 after many previous displacements.REFUGEESThere are Palestinian refugees across the Middle East (and all over the world). Theseare refugees from the 1947/1948 ethnic cleansing of Palestine, and refugees from the1967 war.Varying degrees of civil/political rights accorded to Palestinian refugees living inneighboring countries; all have been denied the right of return to their lands.Note: restrictions on employment on Palestinians in Lebanon, mean that Palestiniansnot even permitted to become lawyers.PALESTINIAN ‘AUTHORITIES’Increasingly repressive Palestinian ‘authorities’. Death penalty in Gaza, restrictionsbeing placed by Hamas, abuses by the security forces of the PA(s) in both WB andGaza.HUMAN RIGHTS DEFENDERS WORKING IN PALESTINESpectrum of human rights violations in Palestine is very broad – so are individualsand groups involved. Touches all aspects of life.Recourse for the population is largely not action through the courts, but in grassrootsorganizing, and international awareness and advocacy.Human rights defenders are not only lawyers, encompass a few groups such asjournalists, activists. Human rights work permeates different types of organisations ofall types. Medical charities and farmers unions do human rights work.OPPRESSION OF PALESTINIAN LAWYERS/HUMAN RIGHTS DEFENDERS AREHRD face the challenge of operating to defend against human rights violationsresulting from the Israeli occupation, Israeli policies towards minority populationsinside Israel ‘proper’, and those violations committed by Palestinian authorities.Two threats: (1) environment itself; (2) specific targeting(1) systems of oppression are not ones which are avoided by not putting your headabove the parapet - Risk factor is that you are an ambulance driver, farmer, teacher.freedom of movement issue – difficulties meeting clients, collecting evidence,restrictions to attend court.(2) “Palestinians who have carried out attacks hide in human rights offices….mosthuman rights officers in WB/G provide shelter for Palestinian terrorists.” IsraeliForeign Minister, Silvan Shalom, 2003.Israel is not alone using this tactic to slander human rights lawyers – attempts todiscredit their work, undermine public and financial support for their activities.Copyright © 2013 Queen’s University Belfast and authors. 104

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Palestinian and Israeli legal organisations are heavily reliant on external funding andthis has been put under great pressure.This has been carried out internationally – pressure groups abroad have put substantialpressure on organisations abroad funding their work, and have succeeded in manycases in removing funding for legal organisations.Attacks on premises of human rights organisations: 2002 main spate of attacks, butongoing.Restrictions on international travelo At best: long waits for permits to be able to travel out of Palestine. Inability toplan work. Numerous conferences, meetings, where speakers cannot show upas planned. Meetings are not just meetings – it is about advocacy, lobbying,awareness – key to have people themselves describing their situation.o Complete denial: Shawan Jabareen (director of Al Haq) : complete denial oftravel out of the West Bank. Travel Ban: since 2006, recently eased. INTERNAL PALESTINIAN DYNAMICS: Human Rights organisations preserveindependence, and safeguard their position, while advance critiques of Palestinianauthority – Hamas authorities, or West Bank authorities. Threats remain from nonstateactors and increasing issues from state actors.DENIAL OF JUSTICE: RESTRICTING ACCESS TO THE COURTSNumerous attempts to restrict or bar access to the courts in Israel.Legislation barring compensation claims by Palestinians if circumstances ofinjury/death was during ‘conflict’ (broad wording, not limited to active militaryengagements). This legislation has now been overturned.Law: claimants must give substantial ‘deposit’ when making claims financialobstacle.Important cases dismissed because Palestinians not able to get permits to leave toenter Israel. Israeli Ministry of Justice at the time said that there was “no legalobligation on the State of Israel to allow the entry of Gaza residents”ISRAELI HUMAN RIGHTS ORGANISATIONS AND LAWYERSVery important role. Israeli human rights organisations do incredible, essential work.NGO law – restrict the funding they receive.Demonized and vilified in the Israeli press, Knesset.CASE STUDY: ADDAMEER PRISONER’S ASSOCIATIONFantastic organisation that works for the rights of Palestinian prisoners, providinglegal support for those held in Israeli and Palestinian prisons/ detention facilities.Addameer works against policies of administrative detention – seen number of itslawyers, researchers and workers placed under administrative detention.o Former director, Khalida Jarrar, was held in detention for 22 days followingher participation in International Women’s day. Following this, completelybarred from leaving the West Bank.Copyright © 2013 Queen’s University Belfast and authors. 105

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013CONCLUSIONo Abla Sa’adat: 21 January 2004 left to attend World Social Forum in Brazil.Left three days in advance, knowing the checkpoints, delays subjected to asPalestinian. Detained at the border by Israeli security services, transferred todetention centre. Held in jeep for 6 hours. Family or Addameer not informed.Only found out as someone saw her and who saw her informed Addameer.o Addammer contacted Israeli authorities: wouldn't confirm or deny whether shewas detained. After 40 hours, confirmed that she was being held – confirmedwas being held in isolation cell. Health concerns, severe chronic back pain,kept in cell 2 x 2.5 metres wide.o 22 January was issued with a 4 month detention order.o 23 January: Allowed to leave cell for first time two days later to use toilet andsee a lawyer. The conditions were so bad that some of the other women beingdetained with went on hunger strike.o When lawyer tried to visit in early February, subjected to extreme harassment,extensive searches, locked in room for three hours. While her lawyer waslocked in a room, Abla was being interrogated, informed that her work was thereason for being held.o ANAS BARGHOUTI worked as a lawyer for Addameer, particularly defendingPalestinians held in Palestinian Authority detention. Had been harassed by PAsecurity forces for his work.o Barghouti: arrested by the Israeli army at a military checkpoint north ofBethlehem on 15 September 2013. He was on his way home to Ramallah aftera visit friends and family. At around 7pm soldiers stopped the car in whichAnas was travelling and arrested him after he identified himself as a lawyerand presented his Bar Association card. Soldiers confiscated his phone andquestioned him before they blindfolded and handcuffed him and transferredhim to a detention centre in the illegal Israeli settlement of Etzion. He wasthen taken to Ofer military complex.o Barghouti was first presented to a military court on 16 September when ajudge agreed to the military prosecutor’s request to extend his detentionwithout charge until 22 September. On that date, his detention was againextended until 24 September when he was presented with two charges.o The first charge is “membership in the Palestinian Front for the Liberation ofPalestine”, an organization which Israel has banned. The second charge is“leadership of a committee to organize demonstrations”. Anas Barghoutidenies both charges. Further hearings postponed – and finally given bail athearing on 23 October. But will not be end of the story.Lawyers are but one category of professionals working as human rights defenders.The oppression of lawyers, the administrative struggles and restrictions, are faced byall Palestinians.While the arrest of Anas Barghouti and others shows an attempt by Israel to silencethem, paradoxically this is raising awareness about the issues internationally.While the system of oppression is in place (occupation, blockade, discrimination),there will be no effective protection for Palestinian human rights defenders.Action is needed on many levels:Copyright © 2013 Queen’s University Belfast and authors. 106

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013o (1) inform yourself and others – vast amounts of excellent reports, evidenceand information produced by Palestinian, Israeli and international humanrights organisations. If you have the opportunity, visit Palestine – there is nosubstitute;o (2) speak out – call on politicians not to carry out ‘business as usual’ withIsrael, adhere to human rights obligations and international law;o (3) consumer power – visit www.whoprofits.com - don’t buy produce fromIsraeli settlements, check the labels, ask local shops not to stock this produce,your local.PowerPoint Presentation:Copyright © 2013 Queen’s University Belfast and authors. 107

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013DR TING XU is Lecturer in Law at the School of Law, Queen’s University, Belfast.She holds an LLB from Sun Yat-sen University and an LLM and PhD from the LondonSchool of Economics. Her main research interests are in the fields of law, governance anddevelopment; property law; property and human rights in a global context; socio-legalstudies; political economy; and Chinese law. Her research has been published in the form ofjournal articles and book chapters. Her first monograph entitled The Revival of PrivateProperty and Its Limits in Post-Mao China will be published by Wildy, Simmonds and HillPublishing in Autumn 2013.Dr Xu delivered a presentation entitled ‘Lawyers in Post-Mao China’ on the situation inChina.Abstract: In post-Mao China, lawyers are gaining more autonomy. However, they are stillembedded in a single ‘political-legal system’ which includes not only the courts, but also thepolitical-legal committee of the Chinese Communist Party (CCP), procuratorates, police, andprison/forced labour system. In such a system, any law should accurately reflect CCP policy,and the judiciary lacks autonomy, and their rulings are constrained by local party organs (forexample, the political-legal committees) and local governments. The paper looked at both theopportunities and challenges that Chinese lawyers face in rapidly transforming post-MaoChina. It focused on the emergence of lawyers as a professional group, their status, trainingand qualification, their relationship with the complex political-legal system and wider socialnetworks. It examined some cases in which the rights of lawyers are not respected andsometimes severely abused. It also analyses the role of professional bodies – whether theysucceed or fail to tackle such issues. Finally, it considered the future of Chinese lawyers andthe prospects of improving the legal system.Paper: China’s lawyers are lawyers in a transforming society. As we know, at least sincemarket reform and the opening up of China commencing in 1978, China is no longer a closedsociety. It has transformed into a society that regularly communicates and interacts with theoutside world. We use the word transformation rather than transaction because the termtransaction implies a clear trend and forceful outcome. Transformation is the moreappropriate word to describe the situation in China and to keep analysis neutral and to leavethe question of how much change open.Our approach is we focused on the role of lawyers in such transformation, which provides alance through which we can get a general picture of this transforming society, law and legalconsciousness in post-Mao China. We focus on the qualification of lawyers, their changingstatus and organisation, and their embedding in these cultural and institutional frameworks.Lawyers in a Transforming SocietyYou may be surprised, as you may be expecting a presentation on the oppression of lawyers.But China’s lawyers are not lawyers in wars, in conflicts, or in divided societies. They are ina harmonious society. So when discussing about China’s transformation we always focus ondiscontinuities which seem to be obvious. We talk about pre-Mao, Mao and post-Mao China.But there are lot of continuities, for example, harmony and Communist values seem to haveCopyright © 2013 Queen’s University Belfast and authors. 108

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013penetrated all the affairs of Chinese society, from the political elite, to business leaders andacademics. The construction of this socialist harmonious society is a resolution adopted bythe Chinese Communist Party in October of 2006. This kind of culture and thought ismanifested in dispute resolution in China. People prefer mediation and avoid litigationbecause disputes are viewed as disruptions of natural and social harmony. Most civil casesare settled extra-judicially.In this kind of society, the role of lawyers is a disciplinary role. What it means is that lawsand lawyers ensure the cohesion of the group or society, rather than to protect individualrights. To understand the role of lawyers in Chinese society, we need to get a general pictureof the institutional and cultural frameworks.The Conventional Perception of Lawyers in ChinaFor some historical background – lawyers in China were called litigation masters. Thiscarries very negative meanings. People thought lawyers were people who liked to maketrouble in order to make money. Officials regarded them as those who disrupted socialharmony. The Government often restricted activities of litigation masters, as they challengedthe authority of the officials. There were no such things as law firms. These litigation mastershad to cultivate very good relationships with local magistrates, in order to win the cases. Thephoto on the slides shows a trial in 1889. You can see that in the court room there wasabsolutely no place for the litigation masters and their clients to sit.Modern Legal SystemThe modern lawyers system was established in China in the early 20 th century. However, thissystem was attacked in the 1950s, particularly by the anti-rightest movement. During theculture revolution, there was no law, no order and it was a very cauotic society. Virtually nolawyers existed during the culture revolution. The period between 1979 and 1989 was aperiod of restoring the lawyer system. During this period lawyers were State employees andreceived salaries from the State. Cases were also assigned by Government officials and mostwere criminal cases. Legal fees were also decided by the State. Most lawyers were part-timeand there were a very small number of them. The professional level of qualification was verylow. For example, there was a Middle-School teacher who after retirement applied to theLegal Consultation Office. She was employed as a lawyer, she knew very little about the law,but was very good at arguing with the prosecutors and judges. The clients thought she was avery capable lawyer and she was very popular. The qualification examination started in 1986and was replaced by the National Judicial Examination from 2002. In 1988 the experimentwith partnership at law firms began. In July 1986 the All Lawyers Association was setup.The State organisation in post-Mao China has been transformed. According to a report by theChina Lawyers Association (Bar Association of China that carries out the administrativefunction of all lawyers and all Chinese lawyers are a member), the number of law firms inChina by the end of 2012 was 19,361, with an annual gross rate of 6%. Three forms of lawfirms exist within the legal system. These were partnership, sole proprietorship and Stateowned.Law partnerships are the main form. It is worth mentioned that since China’s entryinto the World Trade Organisation, China’s Government has loosened the restrictions onCopyright © 2013 Queen’s University Belfast and authors. 109

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013foreign law firms entering China’s market. For example, the restrictions on the number offoreign law firms, their locations and the number of their offices in different Chinese citieshave been eased. As a result, the number of foreign law firms in China had reached 228.The Qualification of Chinese LawyersThere are two systems. The first is the evaluation and verification by the Department ofJustice. According to the Provisional Regulations of Lawyers of the PRC, those people thatcould be considered by the Department of Justice include law graduates who have at leasttwo years of legal practice, or legal research and teaching. Thus the emphasis is on legaltraining and experience. Another system is the establishment of the bar examination, whichwas introduced in 1986. But it is still supplemented by evaluation and verification by theMinistry of Justice. The Lawyers Law of the PRC was adopted in 1996. The two systems ofqualification continue to operate together. Article 6 emphasises this examination system andArticle 7 emphasises the verification and evaluation process by the Ministry of Justice.After possessing the qualification as a lawyer, an individual needs to practice. They needtraining at a law firm for a full year and need to be a person of good character and conduct.This is an image of Chinese lawyers today. This is another photo of a civil trial. You can see,compared to the trial in 1889, there has been a lot of improvements. There is a space forjudges, lawyers and clients.Governance in ChinaTo understand the role of lawyers in the Chinese system, we need to determine how China isgoverned. Governance is about the totality of processes and arrangements, both formal andinformal, by which power and public authority are distributed and regulated. We studiedformal political institutions (Government and Judiciary at central and local levels) andinformal institutions (patron-clientelism and networks). China’s lawyers are embedded in asingle political legal system, which includes not only reports but this political legalcommittee of the Chinese Communist Party (CCP), procuratorates, police, and prison/forcedlabour system. In such a system, any law should accurately reflect CCP policy, and thejudiciary lacks autonomy, and their rulings are constrained by local party organs (politicallegalcommittees) and local governments. Under such circumstances lawyers are subject todual administrative controls. They are subject to the control of the judicial administration(Ministry of Justice under the State Council and the Department of Justice at the local level)and Lawyers Associations (All China Lawyers Association and local lawyers associations).In such political-legal systems, lawyers associations are not entirely autonomous. They arealso subject to judicial administration.To provide an example of how this single legal political system operates, it is worthmentioning Article 306 of the Criminal Law of the PRC (revised 2011). In the course ofcriminal procedures, if the lawyer destroys or forges evidence, assists the party concerned indestroying or forging evidence, threatens or lures witnesses to, contrary to the facts, tochange testimony or provide false evidence, he shall be sentenced to a fixed-termimprisonment of not more than three years or criminal detention. If the circumstances areserious, the offender shall be sentenced to fixed-term imprisonment of not less than threeCopyright © 2013 Queen’s University Belfast and authors. 110

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013years and not more than seven years. The problem is that the term lures or lures witnesses isvery vague. As a result, the prosecutors could easily abuse the use of Article 306 and putlawyers in prison. Between 1996 and 2009, around 300 lawyers were accused of forgery ofevidence and were sentenced due to Article 306. Apart from that, lawyers also have manydifficulties with meeting their clients, collecting evidence, and reading original materialsabout the cases.An Exemplary SocietyChina hosts an exemplary society. This means that the Chinese Government largely rules byexamples offered to the people as templates of good moral character, which is to be imitated.The Chinese officials govern through ethical solutions, highlighting both stability and order.This socialist law prioritises stability and order, rather than protection of individual rights. Tosome extent, lawyers’ activities are restrained by such a society.Lastly, the emergency of barefoot lawyers and class-action lawsuits are worth highlighting.These are people with a middle-school education and grasp a basic knowledge of law (oftenself-taught). Most do not have the lawyer’s practice certificate, but they actively engage inprotection of the rights of farmers and other disadvantaged people at the local level. Thyeoften deal with mass-nature disputes, such as land acquisition and housing demotion cases,which usually include a lot of people and have huge social impacts. They are called humanrights lawyers in China. These types of people work outside the courtroom, but do real workin practice. They are also act outside the single political legal system, yet they are restrainedby the current cultural and institutional frameworks.ConclusionIn conclusion, there have been a lot of improvements of the Chinese legal system. Despitethese reforms, lawyers in China are still like a bird in a cage. They have certain freedoms, butonly within that cage.Copyright © 2013 Queen’s University Belfast and authors. 111











[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013PROFESSOR SARA CHANDLER is Chair of the Law Society ofEngland and Wales’s Human Rights Committee. She is President of the Human RightsCommission for the Federation of European Bar Associations, and Chair of the ColombiaCaravana UK Lawyers Group, a charity which supports human rights lawyers at risk inColombia, with an international network of lawyers in 15 jurisdictions. She is also a memberof the Law Society’s Council, representing solicitors in the voluntary sector. Sara is PastPresident of South London Law Society and Past President of the City of Westminster &Holborn Law Society.Sara took up her post of Visiting Professor of Clinical Legal Education at London SouthBank University in 2012, working in the Legal Advice Clinic where student volunteersprovide free legal advice, and in Lambeth County Court Help Desk scheme, offeringassistance to the public by student volunteers.Sara has a long history of human rights work, having worked at North Lewisham Law Centrefrom 1982 to 1992, and at Plumstead Law Centre from 1998 to 2003. She was Vice Chair ofLaw Centres Federation from 2000 to 2002. She completed 15 years in Law Centres, 5 yearsin legal aid firms and 9 years at the College of Law, London, before joining London SouthBank University. Before becoming a lawyer, Sara worked with refugees from Chile for over6 years as a bi-lingual social worker, she speaks Spanish fluently.Sara has experience in training international pro bono lawyers, and has a particular interest inUganda, Zambia and Nigeria where she has worked with local Law Societies, Law Schools,NGO’s and others in establishing networks of legal aid providers, and pro bono schemes.She is an active member of the Global Alliance for Justice Education and the Clinical LegalEducation Organisation (UK) and participates in the Public Interest Lawyers network, theInternational Journal of Clinical Legal Education, and Association of Law Teachers. Herspecial interest is in the teaching of ethics.Professor Chandler presented a paper entitled ‘Lawyers at Risk in Colombia’, on the situationin Colombia.Abstract: Colombia is a country which has suffered conflict over a prolonged period of 60years. Armed forces including the state security forces, both army and police, guerrillaarmies, and para-military groups have carried out gross violations of human rights. Thoselawyers that practice in the field of human rights supporting the rights of the victims of thesearmed parties are themselves the recipients of death threats, attacks and assassinations. Theyseek protection which comes in a variety of ways, for example by peaceful accompanimentby volunteers from Peace brigades International, through protective measures such asbodyguards, bullet proof vests, and protected vehicles, put in place by the state NationalProtection Unit, or at the orders of the Inter American Commission. The greatest protectionof all would be to investigate, prosecute and convict the perpetrators acting as a deterrent toothers. However, it is often the human rights lawyers who have to bring prosecutions onbehalf of the victims because the state prosecution service is unwilling or unable. The rate ofimpunity in cases of gross human rights violations is 97%. Given such a high rate what is thefuture for the protection of human rights in Colombia? The Colombian State is currentlycarrying out peace talks with guerrilla leaders, and it is hoped that this will lead to a period ofCopyright © 2013 Queen’s University Belfast and authors. 122

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013transitional justice. This talk will examine the implications of this coming period for humanrights defenders.Paper: Thank you for inviting me to contribute to this discussion. It is an honour. I am asolicitor from London, who on behalf of the Law Society of England and Wales has beeninvolved with supporting human rights in Colombia for the last 10 years. I am Chair of anNGO, the Colombia Caravana, which is part of an international network of support, whichvisits Colombia every 2 years at the request of Colombian Human Rights lawyers.History and Background to the ConflictColombians have experienced 60 years of conflict, between a triangle of armed actors,comprising the army and police, the guerrillas, and the para-militaries. Para-military groupsare widely acknowledged to be state sponsored according to the Amnesty InternationalReport 2008, and in the report of the foremost group of human rights lawyers: CCAJAR(Colectivo de Abogados Jose Alvear Restrepo) entitled: “The False Reality of the Para-Military Demobilisation”, dated 10 October 2006.The population, and human rights defenders, particularly in rural areas, are caught in thecross fire between the three armed parties in the conflict. Colombia has around 5 milliondisplaced persons, expelled from their land by para-militaries, and the state security forces.Reasons for this expropriation of land vary from changing the use to large scale palm oilproduction, or to make way for the extractive industries, which have established large mininginstallations. The restitution of land is a crucial issue, and since the introduction of a Victimsand Land Restitution Law by the current government it has heightened the tension in ruralareas.Throughout these decades of conflict, Colombia has remained ostensibly a democratic state,with elections according to the Colombian Constitution based on the separation of powers,and formal guarantees of human rights. Colombia is party to most of the major conventionson human rights and was one of the original signatories of the Universal Declaration ofHuman Rights in 1948.Colombia continues to be an extremely dangerous country to be a lawyer, and to upholdaccess to justice. According to information from the Attorney General’s Office in 2012, therewere over 4,400 incidents against lawyers between 2002 and 2012, over 450 lawyers havebeen killed in Colombia since 1991. 15 cases of killings have been reported to the Caravanain 2013 alone.Many cases of threats and attacks are reported by the Colombian Association of HumanRights Lawyers (ACADEHUM). A minority of the 200,000 lawyers in Colombia are humanrights lawyers; dedicated to representing the most vulnerable populations affected by humanrights violations, including extrajudicial killings and forced disappearances, and by violationsrelated to the armed conflict.These lawyers are part of a community of human rights defenders in Colombia. Anycommunity leader, indigenous leader, peasant farmers, women’s rights leaders, tradesCopyright © 2013 Queen’s University Belfast and authors. 123

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013unionist, teacher, priest, student or similar activist who defends human rights is at severe riskof death threats, attacks and assassinations.According to data published by the We Are Defenders Program (Somos Defensores),murders of human rights defenders increased by 27% in the first half of 2013 (from 29 casesin 2012 to 37 in 2013). Impunity for these crimes stands at 98%. It is a matter of graveconcern that there are high numbers of killings of lawyers in the Valle del Cauca region, withits regional capital, Cali. Cali is happily known as the capital of Salsa, but also has a muchmore dangerous reputation.The lawyers in the region killed this year were from all walks of the legal profession,including criminal lawyers and administrative lawyers. In most cases they were shot byunknown assailants as they went about their working lives. The region suffers from highlevels of violence, related to the continued armed conflict and the persistence of illegal armedgroups with links to drug-trafficking.The data on lawyers killed in the Valle del Cauca region was reported by the Society ofLitigating Lawyers in Cali, (Colegiatura De Abogados Litigantes ). Although they haverepeatedly called upon the Colombian State to investigate these killings, this has met withsilence. Human rights lawyers live with death threats. Most common are threats received byemail or text on the lines of: “you are a guerrilla, we will kill you”.The Colombian state initiated a process of demobilisation of paramilitaries in 2003 to 2006.They were encouraged to enter a process of confession to their crimes in return for shortsentences. For example, in the Colombian penal code, the sentence for murder is 40 to 60years, para-militaries were offered 5 to 8 years in return for information about the incidentsthat they were involved in. The process was flawed, with the leaders being extradited to theUSA to face charges on drugs, while the families of victims got little justice. In 2008 I satwith families in a Barranquilla court room watching on a big screen the questioning of a paramilitaryin an adjoining room. The widow of a man killed by associates of the middle rankingpara-military being questioned, was assisted to send written questions in to the prosecutor bythe human rights lawyer who was our host. The para-military answered nearly every questionwith a simple “I am sorry I cannot remember”. Some participants in the process were not theactual para-military in question, but were paid to stand in for them. Convictions from thatprocess were very low. The failure was even starker when it became clear that para-militarieshad regrouped, and even retained the same names.Death threats, physical attacks and assassinations are not the only form of oppression sufferedby human rights lawyers. Their offices are burgled and case documents and computers arestolen, they encounter cyber sabotage and note the constant surveillance by individuals on thestreet.A very clear example of state harassment was the surveillance and intelligence project againsthuman rights lawyers by a state agency. In 2009 it was revealed that a secret group within thestate intelligence service known as the DAS, Departamento Administrativo de Seguridad, hadbeen watching the lawyers, photographing them, recording details of their lives, and that oftheir families, and that information gathered was being passed on to para-military groups.Copyright © 2013 Queen’s University Belfast and authors. 124

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013There is a tragic roll call of 15 lawyers killed this year, about whom the Caravana advocacygroup has written to the Colombian President: Daniel Alejandro Almario Calderon (Jan 25) Eduardo Antonio Martínez (Jan 25) Jorge Iván Gómez Guerrero (Feb 28) Jhonny Alberto Balarezo Ortiz (Mar 1) Amaury Manuel Sáez Coronado (o/a Mar 7) Diego Luis García González (Mar 21) Alberto Arias Escobar (May 1) Andrés Felipe Parra Utima (July 23 Fabio Molina Vásquez (July 13) José Gerley Sánchez Benítez (July 16) Juan Carlos Canizalez Ocampo (Aug 12) Edison Alberto Molina (Sept 11) Ricardo Rodriguez Cajamarca (Oct 2) Óscar Cortez Baena (Oct 17) José Lubian Duque Jimenez (Oct 18)I will describe only one recent killing which typifies these assassinations: Ricardo RodriguezCajamarca was a human rights lawyer and former local human rights ombudsman. He wasshot dead in the municipality of Acacias (Meta) on Thursday 10 October 2013, by unknownassailants travelling on a motorcycle. He had reported serious human rights violationscommitted by paramilitary groups operating in the area, including displacements, forceddisappearances and killings, and abuses against civilians by the Colombian Army. He hadalso been involved in denouncing a series of mass detentions and unfounded criminalproceedings brought against small-scale farmers.In addition to the killings are the constant threats. I will give you just 5 examples of recentthreats this year:On 14 July lawyer Jeison Pava and human rights defender Diego Martinez and their familiesreceived death threats by email whilst they were attending a MOVICE (the movement forvictims of state crimes) conference in La Macarena, Meta. During the event they noticedplain clothed men riding plateless motorcycles circling the venue. When alerted to the matter,the police did nothing.15 August - José Humberto Torres of the Committee of Solidarity with Political Prisoners,CSPP, and José Alvear Restrepo Lawyers’ Collective (CCAJAR) received death threats bythe Rastrojos paramilitary group. The threats stated that they are military targets, becausethey have links with the guerrilla; are hampering the peace process, and the work of miningcompanies in Colombia.1 August - threats were made against lawyer Manuel Garzón and other human rightsdefenders from the Inter Church Justice and Peace Commission NGO. Mr Garzón wasfollowed as he left his office in Bogotá, and told to “Stop what you are doing”. Paramilitariesare keeping members of the NGO, who work with the communities of the Curvaradó andJiguamiandó River Basin, under surveillance. A judge had sentenced two businessmen linkedCopyright © 2013 Queen’s University Belfast and authors. 125

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013to the African palm industry to 125 months in prison for the forced displacement of these twocommunities; aggravated conspiracy to commit a crime; and invasion of land of specialecological importance. They had been acting together with paramilitaries. Manuel Garzónrepresented the communities.10 September and 24 September – further death threats were sent by the Los RastrojosParamilitary group to human rights defenders and lawyers’ organisations CCAJAR, theCommittee of Solidarity with Political Prisoners and the Yira Castro Corporation, in whichthey were given 72 hours to leave their areas of work.19 October - threats were made by Los Rastrojos against members of the NationalOrganisation of Indigenous people ONIC, including Luis Fernando Arias Arias, a lawyer andONIC High Councillor, declaring them to be “military targets”. The threats were made duringa national indigenous human rights protest called the MINGA, which began 5 days earlierand was coordinated by the ONIC.The driving force behind the attacks on lawyers comes from a variety of directions. There areclear circumstances when human rights lawyers are representing victims of state crimes, suchas the extra judicial killings by the Colombian army in the “false positives” series of crimes.This refers to the practice, now ended, when army personnel were offered incentives to killguerrillas. Lacking actual captured or dead guerrillas, some army members resorted tokidnapping, or set up false employment agencies which enticed men from cities and fromrural areas. These kidnapped or duped people were later found dead dressed in guerrillauniforms. I heard testimony about family members who were found dead in circumstancesabout which their families knew nothing, except for example, one mother I talked to who hadreceived an excited call from her son who said he was going to be picked up by minibus to betaken to a new job. Shortly after that she heard of his death and the accusation that he was aguerrilla. Not only the lawyers for the victims, but Judges have also received threats duringthe course of some of these trials. The problem comes straight from the top, not just theleadership of the armed forces, but even the President has condemned lawyers and Judgespublicly.Lawyers are distracted from their legal work, by being criminalised themselves. They areaccused of “rebellion” and of being a member of a guerrilla organisation. They cannotrepresent their clients once they arrested and have to defend themselves.Role of Professional BodiesColombian lawyers belong to a large variety of professional associations, such as the alumniassociations of their Universities or organisations associated with their area of practice. Therehave been attempts to establish an independent, national bar association for some years. Suchan association would provide national representation, regulation and a measure of protectionfor lawyers at risk. The International Bar Association Human Rights Institute has facilitateddiscussion with the main Colombian lawyers groups. In August 2012 we met with lawyerswho had participated in the first National Congress to establish the Bar Association, and theyintend to proceed to full establishment as a legal entity.Copyright © 2013 Queen’s University Belfast and authors. 126

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013The Cali Litigators are the most active organisation in seeking protection for their members,apart from the human rights collectives which have international links.ProtectionSome Colombian human rights lawyers have been granted protection measures from theState, sometimes ordered by the Inter-American Human Rights Commission or Court.Because their work often exposes corruption and violations by State agents, they suffer publicstigmatisation, and state that they require political support from the State for their work.The Colombian state has set up a National Unit of Protection in the Vice President’s office,which has around 11,500 people on their lists for protection. Individuals have to wait too longfor risk assessment of their case, and sometimes all they are offered is guidance from thepolice, and a mobile phone to call the police for help. Some communities are asking forcollective protection, so that any member can be protected and call for help withoutindividual risk assessment.The Colombian Constitutional Court protects the rights of every Colombian citizen beforethe law. Anyone can bring an action of “tutela” to ask the Court for a decision on violation ofhuman rights. Human rights lawyers represent victims of state crimes, including communitygroups, trades unionists, indigenous people, campesinos, African-Colombians, displacedpeoples and others before the Constitutional Court.The Colombian Supreme Court provides the last resort for appeal.The Peace ProcessThe Colombian Peace Process is currently one year old. Talks between the Government, theguerrillas and the army continue. Civil society organisations have not yet been invited toparticipate. Lawyers have not been asked to participate. Human rights lawyers seekprotection and justice for the victims of the guerrillas and the army. Talks centred on generalamnesty overlook the rights of victims. There are calls for a transitional justice process whichwill include representatives of the victims.There are also calls for a Special Tribunal for transitional justice in Colombia withrecommendations to ensure that those who have committed crimes against humanity areprosecutedThe Inter-American Commission and Court of Human Rights provides court of higherlevel when no success has been achieved at domestic level. The Court judges on emblematiccases, such as massacres by state security forces. It also provides Court orders for protectionof human rights defenders.International bodies such as the United Nations have a vital investigative role on humanrights in Colombia.United Nations Universal Periodic Review, last session for Colombia started 2012, enablescomplaints to be brought from any organisation within and without Colombia. The SpecialCopyright © 2013 Queen’s University Belfast and authors. 127

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Rapporteurs hear evidence from the human rights lawyers and others during their visits. TheReport of the Special Rapporteur on the Independence of Judges and Lawyers: Gabriel Knaul2009 and the report of the Special Rapporteur on Human Rights Defenders MargretSekaggya published in 2010, provide recommendations which international monitoringbodies can follow up.International Criminal Court has not yet brought any cases against perpetrators inColombia, but investigations continue.International NGO’s such as Avocats Sans Frontieres, Lawyers for lawyers, Peace BrigadesInternational and the Caravana International de Juristas all provide support, and calls forprotection. Since 2008 the Caravana has provided a huge spotlight on the situation of humanrights lawyers, hearing evidence and providing monitoring reports, and actively raising caseswith the Colombian authorities.Since August 2008 there have been over 160 lawyers who have participated in the ColombiaCaravana. Following support given by UK lawyers to review 100 cases going to the Inter-American Commission of Human Rights on 2007, we were invited to organise a large scaledelegation. The 1st Caravana International de Juristas 2008, had 72 lawyers from Europe,North and South America. Our aim was to investigate and report on the situation of humanrights lawyers. We visited 7 regions of Colombia and raised our concerns with ColombianGovernment, and on our return we reported back to international legal organisations of whichwe are members.In August 2010 the 2nd Caravana visited Colombia to follow up on the findings of the 2008Caravana. 57 lawyers from 15 countries met lawyers in 11 regions and heard testimony fromlawyers and their clients. We met local prosecutors, police, human rights ombudsman inregions, and government officials to investigate what protection was available, calling for anational unit to investigate cases where lawyers threatened, attacked or killed.In August 2012, the 3 rd international Caravana was told that the support of the internationallegal community saves lives. 42 lawyers visited 6 regions for intensive interviews, hearingtestimonies, and raising issues with the authorities.The 4th Colombia Caravana will visit Colombia between 23rd to 31st August 2014, and weare calling for delegates from all over the world.Please visit www.colombiancaravana.org and colombian.caravana@gmail.comRecommendations for Improved ProtectionIn Colombia it is a question of change of political will. Public condemnation of the activitiesof human rights defenders by the political leadership, as high as the President of theRepublic, gives a message to the para-militaries that human rights defenders are legitimatetargets.It is extremely important that the emerging national Bar Association includes a specificdepartment for human rights lawyers. Meanwhile, lawyers in Colombian regions from allCopyright © 2013 Queen’s University Belfast and authors. 128

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013areas of the legal profession are calling for resources and support so that they can strengthentheir organisations with regards to infrastructure and training, and so that they can call moresystematically upon the Colombian state to guarantee their protection.The state should provide the investigative and prosecution services necessary to reduce the98%impunity rate in cases of gross human rights violations as a deterrent to further crimes,they should disband and prosecute para-militaries. This should include tracing from whencecame the orders. The ICC should investigate and prosecute crimes against humanity.In August 2012 the Caravana delegates were told: your international support saves lives. Thisnetwork of support which makes its concerns known in every Colombian Embassy is aconstant reminder that human rights lawyers are not alone.Every one of us can play are part in providing that support.I urge you to do so. Thank you.PowerPoint Presentation:Copyright © 2013 Queen’s University Belfast and authors. 129











[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013SIMARJIT KAUR is a humanitarian aid worker, in TARAN, which is a widows’project in Punjab, an arena of impunity. She has worked with human rights defenders in theregion for the past ten years.Ms Kaur delivered a presentation on the situation in India.Abstract: The Punjab in Northern India went through several decades of conflict, extrajudicial killings and torture. This paper looked at the consequences for non-state actors:lawyers, human rights defenders during the time of conflict as well as now (including JusticeBains, PHRO). It also considered the problems faced in other parts of India- Kashmir, U.P.,Gujrat and how repressive laws that have gone against international human rights standards,repressive laws in the name of security and counter terrorism that abuse human rights on anew scale, TADA and POTA.PowerPoint Presentation:CCDP was set up post-conflict. This was following attacks, violations against and murders ofhuman rights activists in Punjab.TARAN is the only project of its kind in Punjab. We welcome any assistance throughvolunteers and would encourage you to visit.Thank you to Paramjeet Singh Gazi who does a lot of independent work and bravely on hisown.Copyright © 2013 Queen’s University Belfast and authors. 140

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013It is significant that in 1975 that an emergency was declared. This was not an emergency, itwas a dictatorship. This is despite India being referred to as the world’s largest democracy.It is significant that the largest civil disobedience movement opposed to the dictatorship camefrom Punjab.Copyright © 2013 Queen’s University Belfast and authors. 141

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013The Save Democracy Movement turns its focus to autonomy in 1975. This is during a time ofa lot of racism against Sikhs. Hindu majority protestors were not treated in the same way.Copyright © 2013 Queen’s University Belfast and authors. 142

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013In 1984, supposedly to eliminate Jarnail Singh Bhindranwale, Operation Blue Star wasordered by Prime Minister Indira Gandhi took place. During this operation 5,000-10,000 Sikhcivilians were killed. Later when Indira Gandhi was killed by her own Sikh bodyguards inrevenge, 5000 Sikhs were systematically killed. This led to the start of Sikh Militancy forPunjab-Khalistan to separate from India.Copyright © 2013 Queen’s University Belfast and authors. 143

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013It is approximated that 60,000+ were tortured or killed during this period. The reason wehave to rely on estimates is that because the human rights community is getting attacked, thathas a knock-on effect for gathering evidence.Copyright © 2013 Queen’s University Belfast and authors. 144



[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013This case lead to 5,000 lawyers going on strike. Despite this strike it took a long time for theJudiciary to seek an investigation.Copyright © 2013 Queen’s University Belfast and authors. 147

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Lawyers were left exhausted from the number of false criminal charges that they had to face.Hindu Advocate, Lakhanpal, has been unable to prove it, but believes that this son wasmurdered because of his human rights activities.It is important to note that India has such a high rate of poverty. As a consequence of this,lawyers are inaccessible and poor people have to turn elsewhere for assistance. For example,the local village head, doctors (if they can get access to one) or school teachers.Copyright © 2013 Queen’s University Belfast and authors. 148

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013One of the big obstacles against addressing the human rights abuses that take place in India isthe lack of evidence. Jaswant Singh Khalra spent a lot of time gathering evidence of theillegal mass cremations that were being conducted by police as part of a scorched earthpolicy. Khalra went abroad to raise the profile of these incidents, but once he stepped back onIndian soil he was murdered. Significantly, Khalra’s evidence is the only legalacknowledgement of the police killings that took place in Punjab in the 1990s.Copyright © 2013 Queen’s University Belfast and authors. 149

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Non-State actors with no previous criminal records were targeted. Young males wereparticularly at risk. Even members of the elite were not spared. These are people from verystrong backgrounds and with a lot of protection, but even they find themselves under attack.Copyright © 2013 Queen’s University Belfast and authors. 150


[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Political Prisoners of Conscience, such as the Punjab Khalistan dissidents faced harassment.Even those who were at one time high up in the police or elected representatives. Theharassment also continued after they were released from prison.Also State actors who refused to torture were targeted.Copyright © 2013 Queen’s University Belfast and authors. 152

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013A number of academic articles, including one in the Harvard Law Review, show evidence ofthe Indian Judiciary slowing down habeas corpus in the courts. This proved that the IndianJudiciary was complicit with the police. This particularly affected poor people who faced thebrunt of the scorched earth policy and were seeking judicial clarification of what happened totheir loved one.After the ceasefire, calls for the creation of a Punjab People’s Commission were also deniedby the Judiciary.Copyright © 2013 Queen’s University Belfast and authors. 153

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013There has been some form of peace process since the mid-1990s, yet harassment and torturecontinues against human rights activists and their family members. This has includedconcocting terrorist charges, charges of sedition and anti-national charges.Copyright © 2013 Queen’s University Belfast and authors. 154

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Aid workers that align themselves with dissident parties are at risk of torture and falsecharges. This includes against non-Indian citizens and those with no former criminal records.It is also worth noting that members of the Hindu majority are not treated in the same way,even if they are protesting.Copyright © 2013 Queen’s University Belfast and authors. 155

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Attempted litigation by victims has been protracted and police intimidation is high. This isdue to those being responsible for the massacres being high profile State actors, potentialpoliticians or elected politicians.Copyright © 2013 Queen’s University Belfast and authors. 156

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013The attitude towards litigation in India is that it is ‘litigation terrorism’.Copyright © 2013 Queen’s University Belfast and authors. 157

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013If high profile members of the community, such as the Chief of the Kashmir Times, are beingattacked, what is happening more generally under Prevention of Terrorism Act that we do nothear about?Copyright © 2013 Queen’s University Belfast and authors. 158

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013In Manipur, Irom Sharmila Chanu is using her body, through hunger strike, to protest againstthe Armed Services Act. The Indian Association of Lawyers found it hard to find a lawyerwilling to take the High Court action to overturn the blanket ban against anyone being able tovisit Chanu.Copyright © 2013 Queen’s University Belfast and authors. 159

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013In India 1 in 4 prisoners are tortured. This has significant ramifications for how terroristcharges can be concocted. There is also evidence of collusion with the Indian media throughits inaction in addressing these issues.Copyright © 2013 Queen’s University Belfast and authors. 160


[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013In Prof Bhullar’s case, of the 130 witnesses produced, no one could identify him. The onlyevidence is a confession signed under torture. Despite a split verdict, with one Judge findinghim not guilty, he still faces execution.In India, outside of a conflict zone, you could argue that you get access to lawyers and thatlawyers are not under fire for representing political dissidents, but the problem is that non-State actors are very readily attacked.Copyright © 2013 Queen’s University Belfast and authors. 162








[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013JUDGE ESSA MOOSA was born on 8 February 1936 in District Six, CapeTown, South Africa. He qualified as a lawyer and was admitted to practise as such by theHigh Court of the Supreme Court of South Africa on 1 June 1962. He practised as a lawyer inCape Town from 1 June 1962 to December 1995. He was the Director of the Planning Unit inthe Department of Justice from 1 February 1996 to 31 December 1997. Its task was toproduce a Strategic Plan for the Transformation of the Administrative of Justice in terms ofthe New Democratic Constitution of South Africa. It produced the Strategic Plan known as“Justice Vision 2000”.In April 1998 he was appointed by President Nelson Mandela as a judge of the High Court ofthe Supreme Court of South Africa and based in Cape Town. He retired officially from activeservice on 8 February 2011. He continues to hold the position of a judge and can be calledupon, from time to time by the judiciary, to render service in his capacity as a judge.As a practising lawyer spanning over a period of more than 30 years, he specialised in humanrights issues. During the apartheid era, he challenged in court human right violations such asdetention without trial, freedom of association, expression and movement, He also challengedin court security and emergency laws and regulations. He acted for a number of prominentanti-apartheid non-governmental and community-based organisations. He also representedleading anti-apartheid political and community activists who were detained without trial interms of the security legislation and emergency regulations and those who were charged withvarious political offences.He was the founding and executive member of the National Association of DemocraticLawyers and chaired its Human Rights Committee. After the unbanning of the AfricanNational Congress (ANC) in 1990, he served as the Secretary of the ConstitutionalCommittee of the ANC. The Constitutional Committee gave logistical support to the ANCnegotiation team led by Nelson Mandela for the establishment of a democratic, non-racial andnon-sexist South Africa. He also served as Electoral Agent for the ANC in the Western Caperegion for the first democratic elections in South Africa held during April 1994.He presently serves as the chairperson of the Kurdish Human Right Action Group (KHRAG)which is based in Cape Town. It monitors the human rights violations of the Kurdish peoplemore particularly in Turkey but generally in the Middle East. It further advocates the peacefulresolution of the Kurdish Question particularly in Turkey and in the Middle East generally.He also serves on the Board of Directors of the European Union Turkish Civic Commission(EUTCC) which is based in Brussels. It monitors Turkey’s compliance with the accessioncriteria for its admission to the European Union as a full member. He also serves as Directorof the International Peace and Reconciliation Initiative (IPRI) which was launched inBrussels on 3 rd December 2012 in response to a joint call led by Archbishop EmeritusDesmond Tutu and supported by other leading international figures for the resumption ofdialogue between the Turkeys Government and the Kurdish leader Abdullah Ocalan for alasting and peaceful settlement of the Kurdish Question in Turkey.On 20 September 2012 he was awarded a Degree of Doctor of Law by the University of theWestern Cape for his contribution to human rights generally and to the struggle particularlyfor democracy, freedom, equality and dignity in South Africa.Judge Moosa presented on the situation in South Africa.Copyright © 2013 Queen’s University Belfast and authors. 170

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Abstract: The paper first explored the posture of South Africa during the apartheid erawhich was characterised by conflict and turmoil. Secondly, it examined the post-apartheidperiod which is a time of relative calm. The paper then drew upon and shared the richtapestry of practical examples of Mandela and others including author as a lawyer and activistduring the period of political turmoil. During the apartheid period the law was designed toperpetuate the political oppression and repression of the large majority of the population ofcolour. Apartheid was used as a tool of social engineering to perpetuate white supremacy.Apartheid was declared a crime against humanity by United Nations instruments andconventions.It is an irony of history that some of the notable figures of the anti-apartheid movement, aswell as that of the proponents of apartheid were members of the legal profession and lawyers.This conflicting interest and relationship is then further illustrated and elucidated in the paper.The paper concluded with certain protection mechanisms not only for citizens but also forlawyers. Some of the salient features of the South African Constitution and Bill of Rights,entrenched in its Chapter Two, forms the cornerstone South Africa’s modern democracy. Notonly does the South African constitution boast a forward looking Bill of Rights, but it alsoentrenches a host of first and second generation rights, which affords its citizens includinglawyers protection against the violation of their fundamental rights and freedom. For thelawyers and the public there is the Legal Services Sector Charter which regulates and protectsthe relationship of the lawyers, the public and the state.Paper: In addressing this topic from the South African perspective, I think it is apt andprudent to examine the posture of the state firstly, during the apartheid period which was thetimes of conflict and secondly, during the post-apartheid period which was the period ofrelative calm. I will share with you a rich tapestry of practical examples including mypersonal experiences as a lawyer and a political activist. I lived and practiced law during bothperiods.Oppression of Lawyers During ApartheidIn South Africa during the apartheid era law was used as a tool of social engineering in orderto perpetuate the supremacy of white domination and racial segregation. It was designed andexecuted to subjugate and oppress the vast majority of the non-white population of thecountry. Such engineering resulted in a large scale forced removals of people and thedestruction of settled and cohesive communities. 2 Apartheid was declared a crime againsthumanity by the United Nations and the international community; the policies and practicesof apartheid were regarded as crimes violating the principles of international law; andconstituted a serious threat to international peace and security. 32 Law as a Tool of Social Engineering: The Case of the Republic of South Africa: Boston College Internationaland Comparative Law Review, Volume 5 – Issue 1, Article 2 at page 2.3 Human Rights: Fundamental Instruments and Documents by Essop M Patel and Chris Watters: InternationalConvention on the Suppression and Punishment of the Crimes of Apartheid: published by Butterworth Durbanin 1994, at page 224-227.Copyright © 2013 Queen’s University Belfast and authors. 171

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013It is an irony of history that some of the leading figures in the apartheid movement as well assome of leading members of the anti-apartheid movement in South Africa were members ofthe legal profession. 4 In June 1964 when Mandela, a lawyer by profession, was sentenced tolife imprisonment, the Minister of Justice in the apartheid government was John Vorster whowas also a lawyer by profession. Ironically both of them were members of the same LawSociety. Vorster later succeeded Dr Hendrik Verwoerd, who was regarded as the architect ofapartheid, as the Prime Minister of the apartheid government. 5It is also not surprising that, at the peace talks in South Africa, the anti-apartheid movementwas led by Mandela and the apartheid movement was led by F.W de Klerk, both of themwere lawyers by profession. What is ironic is that Mandela became the President and deKlerk his Vice- President in the post-apartheid democratic South Africa. For their efforts inbringing about a peaceful settlement to the political conflict in South Africa, they becameNobel Peace Prize Laureates when they were jointly awarded the Nobel Peace Prize inDecember 1993. 6The conflicting relationship is best illustrated by some practical examples. In 1952, Mandelapractised as a lawyer in partnership with Oliver Tambo in Johannesburg. They defendedmostly victims of apartheid. 7 In addition to practising as a lawyer, Mandela was alsoinvolved with the peaceful defiance campaign of the ANC against the unjust apartheid laws. 8Mandela and other leaders were arrested and charged with defying the apartheid the laws.They were convicted and sentenced to nine month imprisonment with hard labour which wassuspended for two years. 9In April 1954 the Law Society of Transvaal brought an application to the Supreme Court tostrike the name of Mandela from the roll of lawyers on the basis that he was not a fit andproper person to practice law by virtue of his conviction for the defiance of the unjust laws.The presiding judge dismissed the application and ordered the Law Society to pay its owncosts. 10A candidate attorney of Mandela and Tambo, namely, Godfrey Pitje, was convicted of andfined for contempt of court when he disobeyed the order of the presiding officer and insistedon addressing the court from the table of the defence counsel reserved for whites instead ofthe one reserved for non-whites. His appeal to the Supreme Court was dismissed despite thefact that segregation was introduced in the courts without specific legal authorisation. 11 TheLaw Society was once more found wanting in not assisting and protecting its candidateattorney or exposing the racial discrimination inherent in the administration of justice in thecourts.At the end of 1956 both Mandela and Tambo were arrested and charged with treason becauseof their peaceful political activities against unjust laws. The charges against Tambo were later4 Mandela – A Critical Life by Tom Lodge: Oxford University Press published in 2006 at page 28.5 Ibid at page 151.6 Mandela: The Authorised Portrait: Published by Wild Dog Press at page 270.7 Long Walk to Freedom: The Autobiography of Nelson Mandela: Published by Abacus and Reprinted in 2012,at page 172.8 Mandela – A Critical Life (supra) at page 53.9 Ibid at page 54.10 Ibid at page 63.11 Rex v Pitje 1960 South African Law Report: volume 4 at page 709 (Appellate Division).Copyright © 2013 Queen’s University Belfast and authors. 172

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013withdrawn, however, the trial against Mandela continued until he was found not guilty anddischarged on 29 March 1961 at the end of a lengthy trial which lasted for almost 5 years.Because of their arrest in connection with the treason trial, their practice starteddisintegrating. This was compounded by the fact that permission in terms of the Group AreasAct to practice in the City of Johannesburg was withdrawn. They were required to practice inan African Township some distance away from the seat of the courts. In 1960 they wereforced to close their legal practice and Tambo left into exile to continue the struggle fromabroad. Mandela continued his struggle from within the country and occupied the flat of hisclose friend, Ahmed Kathrada, in the City to conduct his one man practice illegally.Advocate Bram Fischer, a prominent member of an Afrikaner family and a leading advocate,was the lead Counsel in Mandela’s treason trial and his Rivonia Trial. He himself wasarrested and charged in 1964 for certain political charges. He was released on bail but wentunderground and failed to attend his trial. In November 1965 the Johannesburg Bar Councilmoved the Supreme Court to strike Bram Fischer from the roll of advocates. 12 At the sametime he was re-arrested to face the charges. In a statement from the dock he said that hebelieved in the doctrine of legality but he was duty bound to act the way he did as hispolitical conscience did not permit him to follow the law arising from the unjust policy ofapartheid. In May 1966 he was convicted and sentenced to life imprisonment. 13I also personally accounted oppressive measures when I opened my own practice on 1 June1963 in downtown Cape Town commonly referred to as District Six. I essentially acted forand defended victims of apartheid but more particularly activists charged with politicaloffences, such as sedition, public violence, illegal gatherings etc. The District Six was aunique multi-cultural, multi-lingual and multi-racial area. On 11 th February, 1966, the areawas declared by the apartheid government as a white group area in terms of the Group AreasAct and was reserved exclusively for white occupation and ownership. 14The residents, ratepayers and business community of the area formed an organisation calledDistrict Six Defence Committee to resist the declaration of the area as a white group area. Iwas one of the founding members. The Committee organised peaceful protest action anddemonstrations. This attracted the attention of the security police. They harassed andintimidated the members and participants. They warned them to desist on pain of beingdetained or banned under the security legislation. I was practically hounded out of the areaand forced to close my practice in June 1967. The Law Society made no attempt whatever toassist or protect me. In my view they were complicit with the apartheid regime and deferredto unjust laws rather than expose the inequities of those laws.After being in the legal wilderness for approximately 10 years, I reopened my practice in1978, approximately ten kilometres from Cape Town, in an area that was proclaimed aColoured group area in terms of the Group Areas Act. My practice grew rapidly and we oncemore serviced prominent political organisations and activists in Cape Town and outlyingrural areas.12 Apartheid: An Illustrated History by Michael Morris, Published by Jonathan Ball Publishers at footnote onpage 85.13 Ibid: at footnote on page 86.14 Noor’s Story: My Life in District Six by Noor Ebrahim: Published by I M Publishing CC, Eighth Edition,2011, at page 8.Copyright © 2013 Queen’s University Belfast and authors. 173

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013In 1984, I received a telephone call from a prominent client in the rural area of Oudtshoornthat a number of children were arrested and held at the police station. I contacted one of myprofessional assistants who happened to be in the area with an articled clerk to urgently meetup with the client in Oudtshoorn. On meeting up with the client, he took them to a hall whichwas located near a black township and where the parents of the children were meeting.After taking instructions from the parents, they were on the way to the police station toconsult the children and to secure their release. On the way they were stopped by the policeand charged of being in a black area without a permit. When the matter came before thecourt, they were found not guilty because the state failed to prove that the hall was whollysituated in the black area. The evidence led by the state was to the effect that the hall waslocated partially in the black area and partially in the coloured area for which no permit wasrequired.We made representation to the Law Society to intervene but were informed that the Ministerof Justice, Kobie Coetsee, also a lawyer, insisted that the matter proceed against them eventhough it was a petty charge. The Law Society offered no assistance to protect their membersagainst the harassment of its members by the security police in the execution of theirprofessional duties.Apart from the police, we found the court officials in Oudtshoorn including magistrate’s,prosecutors and even lawyers extremely uncooperative when it came to political matters.They insisted that we travel 500 kms to Oudtshoorn to be present even though the matter wasto be remanded at the instance of the state. It was firstly, impractical to attend; secondly, theaccused could not afford to bear the costs to have us to attend for a few minutes; and thirdly,no lawyer in Oudtshoorn was prepared to accept the brief to appear on our behalf for theaccused. The objective of these court officials was to harass the accused and bring our firminto disrepute.The Oudthoorn Attorneys Circle had taken a conscious decision not to defend accusedcharged with political matters and not to take briefs from other attorneys to appear for them.Although refusing to act for a person irrespective of the charge without good cause amountedto a contravention of the code of ethics, no action was taken by the Law Society against theOudthoorn Circle for contravening the Code of Ethics.The Peace ProcessIn 1985 Mandela while serving a term of life imprisonment wrote from prison to theapartheid government that the only way to end the conflict in the country was for thegovernment to talk to the ANC in order to find a peaceful political resolution to theproblem. 15 This set in motion various meetings between the different role-players in thecountry culminating in the release of Mandela and all political prisoners; the unbanning theANC, PAC and other political organisations and the creation of the necessary climate toenable negotiations to take place for the peaceful resolution of the conflict in the country. 1615 Mandela: A Critical Life (supra) at page 15716 Apartheid: An Illustrated History (supra) at pages 157/8Copyright © 2013 Queen’s University Belfast and authors. 174

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013In the negotiations Mandela led the anti-apartheid group and de Klerk the pro-apartheidgroup. The negotiations led to the adoption of an interim democratic constitution, the firstdemocratic election on the basis of one person one vote, the establishment of the governmentof national unity of the constituent assembly to draft the final constitution and of the truthcommission. 17The Final Democratic ConstitutionThe final constitution adopted by the constituent assembly is the cornerstone of democracyand affirms the democratic values of human dignity, equality and freedom. It provides for theseparation of powers between the legislature, the executive and the judiciary. It also providedfor fundamental human rights and freedoms and structures supporting the constitutionaldemocracy.The constitution provides for radical changes to the legal system by entrenching theconstitution with its Bill of Rights as the supreme law of the country. All laws past, presentand future are to be measured against the constitution and any provision in such lawsinconsistent with the provisions of the supreme law is invalid and can be struck down asunconstitutional. The constitutional court was created as the final arbiter of that process. 18The Bill Of RightsThe new democratic constitution which includes a special chapter on the Bill of Rightsbrought about peace and reconciliation to the people of the country and guaranteedfundamental human rights and freedoms to its people including lawyers. The bill of rights notonly binds the organs of state but also the individuals. Lawyers, like any other citizens areaccordingly protected from the abuse of power by the Bill of Rights enshrined in theConstitution. 19The Truth CommissionThe Truth Commission of South Africa examined the role of the organised legal professionduring apartheid. It found its members, save for a very few courageous lawyers, complicit inthe application of the unjust law of apartheid, which led to grave injustice and hardship to thevast majority of the people of the country. It found that that the organised legal professionwas complacent in the face of the challenges thrown up by the apartheid government in itsdiscriminatory laws, policies and practises and sought to justify them in international forumswhen foreign lawyers’ organisations dared to criticise them. 20In respect of the few courageous lawyers the Truth Commission found that they explored thelimits of their forensic skills in defending those on trial for offences in terms of oppressive17 Long Walk to Freedom (supra) at pages 732/318 Constitution of the Republic of South Africa, 199619 Ibid: Chapter 2 Bill of Rights (ss 7-39)20 Truth and Reconciliation Commission of South Africa Report: Volume Four at page 103, para 34 (k)Copyright © 2013 Queen’s University Belfast and authors. 175

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013legislation or in arguing the invalidity of vague and unreasonable administrative action. They“worked ceaselessly to prepare the cases of those targeted by the state, often in tryingconditions and for little material reward.” 21The Legal CharterFollowing the adoption of final democratic Constitution and the findings of the TruthCommission, the organised legal profession comprising the Bar Council of South Africa andthe Law Society of South Africa in consultation with the Department of Justice andConstitutional Development adopted a Legal Services Sector Charter (the Legal Charter).The Legal Charter committed not only the organised legal profession but also theGovernment to the values, principles and objectives enshrined in the Legal Charter. Becauseof the inequities of the past, access to justice is a cornerstone of the Legal Charter. It is to beachieved through measures facilitating access to legal services, access to legal work, accessto courts and access to an independent and representative legal profession. 22The Legal Charter is consistent with the UN Basic Principles on the Role of Lawyers. 23 Itstates, inter alia, that “professional associations of lawyers have a vital role to play inupholding professional standards and ethics, protecting their members from prosecution andimproper restrictions and infringements, providing legal services to all in need of them, andco-operating with governmental and other institutions in furthering the ends of justice andpublic interest.”A Fair TrialThe benefits of a fair trial, as entrenched in the South African Bill of Rights, are illustrated inthe post-apartheid case of 19 members of the right-wing organisation called the “Boeremag”.They were charged with high treason for hatching a bizarre plan to overthrow the firstdemocratically elected government. All the accused were given legal aid by the State forCounsel of their choice. The marathon trial in the High Court of South Africa is already in its10 year. Most of them have been convicted of high treason. Counsel for the State submittedthat the planned coup was aimed at overthrowing the democratically elected governmentwhich millions of South Africans voted for at the polls. The aim was to move back to aposition far worse than during the apartheid era. 24In conclusion I want to state that the greatest challenges facing lawyers internationally is theanti-terror legislation which forms the domestic law of many jurisdictions. The anti-terrorlegislation has abrogated the rule of law, basic human rights and fundamental freedoms. Insome countries it has been used to oppress citizens who have been fighting for these valuesand rights and more particularly the lawyers who have been performing their professional21 Ibid: at page 104, para 3622 Legal Services Sector Charter – December 2007 jointly adopted by the Law Society of South Africa, GeneralCouncil of the Bar of South Africa and the Department of Justice and Constitutional Development: Republic ofSouth Africa.23 Adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders,Havana, 27 August – 7 September 1990, U>N> Doc. A/CONF. 144/28/Rev. 1 at 118 (1990).24 News Report in the Cape Argus newspaper of 21 September 2013Copyright © 2013 Queen’s University Belfast and authors. 176

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013duties in defence of these citizens. In many cases these lawyers have been identified withtheir clients and their causes in the execution of their professional functions and duties andlike their clients have been charged in terms of the anti-terror legislation.Fortunately in South Africa the Constitution which embraces the Bill of Rights is the supremelaw of the country and any law or conduct inconsistent with it is invalid. 25 The South Africancitizens and its lawyers therefore enjoy constitutional security and protection against theprovisions of the anti-terror law which is inconsistent with the provisions of the Bill ofRights.A fitting end to this presentation would no doubt be a statement by Nelson Mandela, a lawyerby profession and a statesman at his inauguration as the first president of a democratic SouthAfrica on 10 May 1994: “Never, never and never again shall it be that this beautiful land willagain experience the oppression of one by another……..The sun shall never set on soglorious a human achievement. Let freedom reign.” 2625 Constitution of the Republic of South Africa, Chapter 1 : Founding Provisions: Clause 2.26 Mandela was inaugurated as the President of South Africa at the Union Building in Pretoria by Chief JusticeMichael Corbett, following a landslide victory by the ANC in the first democratic election in the countryCopyright © 2013 Queen’s University Belfast and authors. 177

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013PANEL DISCUSSION II: QUESTIONAND ANSWER SESSIONQ. Dr Xu, you have previously discussed the role of lawyers within the Chinese legalsystem and their role outside the court room. Outside the courtroom, what is consideredpolitically correct and socially correct? What contentious litigation is not allowed in thecourtroom? How is the legal system different in terms of oppression and how lawyersare treated?There are several sensitive areas especially in cases which involve a lot of public attentionand people. Lawyers can take cases to the courtroom, but the problem is in the publicity ofthe cases. There is limited information about what has been reported in the media.Q. What issues is China faced with that Africa or India are not?In China there is ‘soft oppression’, compared to the harsher treatment suffered by colleagueselsewhere, where lawyers are killed. Oppression comes in a less direct form, as part of anoverall political, social and cultural framework so it is more complicated and less tangible.Lawyers are like a bird in a cage.Q. Judge Moosa could you please speak about the role of lawyers and about whetherthere has been much legal mobilisation around police brutality in the past few years (i.e.in contemporary South Africa)?Either before or after Apartheid, unfortunately the police have not been able to control thisproblem. Police brutality is continuing, but there have been some charged and successfullyconvicted and sentenced.Q. Jude Moosa, often Human Rights Defenders are not lawyers. Why was it so in theSouth African context? Was the courtroom a place for publicity?In South Africa (unlike other States at today’s conference), Human Rights Defenders areoften lawyers by profession. In South Africa the Courtroom is used as an instrumental part ofthe process and a site of struggle. There is also strong NGO involvement in South Africa, runby lawyers. They used the courts to expose the acts of the Apartheid regime, defend thosecharged with political charges and create political awareness of human rights violations, bothinside South Africa and internationally.Q. There has been some discussion of the role of the media, how it is negative to humanrights. Are there some good news stories in your context? How have they come about?Professor Sara Chandler (Colombia): Visibility is very important and the media can helpwith that. In Colombia positive media coverage is very short-lived, but on occasion there isgood coverage of the work of the Colombian Caravana. However some of the best workCopyright © 2013 Queen’s University Belfast and authors. 178

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013comes not from journalist but from the work of independent filmmakers documenting thework and advice of human rights defenders and lawyers. In the past there was a radioprogramme called ‘legal clinic’ the presenter dealt with issues of police corruption. Howeveras a result of this he was later assassinated.Simarjit Kaur (India): During the conflict periods the media was suppressed, which is whyjournalists were killed for trying to reveal the truth. Despite the fact that papers (including theIndia Express) did run stories asking, for example, “How could X really have done this?”The press is co-operative with regards to press conference (if there is free food provided), butinvestigative reporting has been diminished and you do get the impression that lawyers aretrying to perform for the media, which is very worrying.Judge Essa Moosa (South Africa): The South African media represented the Apartheidregime during the Apartheid and therefore there were cover-ups. The media whichrepresented the anti-Apartheid movement was then called the alternative media. It was quiteactive in exposing the issues and abuses, and for engaging in investigative journalism andprogressive reporting.Dr Ting Xu (China): In China most discussion from Human Rights defenders is conductedon popular social media such as Weibo (Chinese equivalent to Twitter), Blogs and Chatrooms. On the other hand official media is more constrained.Andrea Becker (Palestine): I do not think I can point to causality in Palestine of when themedia improved things. However since the assault on Gaza in 2009 the narrative haschanged. Both Israeli and Palestinian human rights organisations are putting out goodinformation, well-resourced and well-researched. Journalists are increasingly turning to thesereports from human rights organisations to back up their own media reports. This has resultedin a better quality of information and has changed perspectives.Copyright © 2013 Queen’s University Belfast and authors. 179


[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013PANEL DISCUSSION III: IMPROVINGTHE PROTECTION OF LAWYERS INTIMES OF CONFLICTThe aim of this panel was to bring together all speakers together to discuss how lawyers canbe better protected. The panel took place as an open discussion with input from the audience.PROFESSOR COLIN HARVEY is a Professor of Human Rights Law,former Head of the Law School, member of Senate at Queen’s University Belfast andDirector of the Human Rights Centre at Queen’s.He was Professor of Constitutional and Human Rights Law, School of Law, University ofLeeds 2000-2004 and has held visiting positions at: University of Michigan, FordhamUniversity, and the London School of Economics and Political Science.He publishes on human rights law and politics. He is the General Editor of Human RightsLaw in Perspective (a new Series published by Hart Publishing which he founded). He is onthe editorial board of Human Rights Law Review, Northern Ireland LegalQuarterly and European Human Rights Law Review, and is the Case Editor forthe International Journal of Refugee Law.Professor Harvey chaired this panel.Q. Looking forward what key points can speakers which would help provide for thebetter protection of lawyers and human rights defenders in times of conflict?DR TING XU: To improve protection of Chinese lawyers we need to improve thestatus of lawyers and to protect lawyers’ rights to practice, to strengthen the role of thelawyers’ association. Also to encourage those grass roots initiatives.We learned from my presentation that the lawyers’ status in China is inferior to that ofjudges, prosecutors and police. There are many oppressive measures used by prosecutors andpolice against lawyers. So there is urgent need to improve the status of Chinese lawyers.If you look at the Chinese lawyers’ law, you will see that it lists many obligations of lawyers,rather than their rights. There are no provisions saying that if the administrative authorities,the prosecutors, or the police infringe lawyers’ rights, what kind of protection that lawyerswould benefit from.Copyright © 2013 Queen’s University Belfast and authors. 181

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Regarding the role of the lawyers’ association. Most important issues regarding lawyers andlaw firms are still decided by a judicial administration, rather than the lawyer’s association.So the autonomy of the lawyer’s association needs to be strengthened.Finally, to encourage grass roots initiatives, like discussed in my presentation. In China, theeconomic, legal and political reforms have really been shaped by these top-down measures. Ithas intended consequences. It has unleased this private/informal power, which breaks throughthis old system. So some laws do not conform to the policy. It lingers between this areabetween legal and illegal. We need to pay more attention to those kinds of grass rootsinitiatives, because they are the real, down to earth factors that will determine the future ofChina.In conclusion, to protect lawyer’s rights, it would be a systematic project involving thereform of the whole political, legal system within cultural and institutional frameworks.PROFESSOR PHILIP LEACH: I think I will mention two areas inparticular. It is, as I said earlier, it does feel like an oblique and difficult moment especially inthe North Caucasus at the moment. This is particularly because of the threat to NGOs throughthe Foreign Agents Law. Also because of the continued lack of political will in Russia toresolve these very serious human rights violations in the Caucasus region.There are two things I want to underline. Firstly, the role of NGOs. How important they canbe and will continue to be to protect the rights of lawyers and the role of lawyers in the workof lawyers, both nationally and internationally, in monitoring and litigating. I mentioned thework of the Joint Mobile Group in Chechnya. It is important that faced with threats like theForeign Agents Law in Russia, it is important that we stand up internationally to protect. Weall need to know about the Foreign Agents Law and we should be doing what we can toobject to it. There is a case going to Strasbourg to challenge it for example.The second is, to come back to the Strasbourg court, the role of international human rightscourts in the context of the North Caucasus. The European Court of Human Rights has playeda pretty remarkable role in highlighting that what is going on, in a way no other internationallawyers have been able to do so. As I mentioned earlier, more than 200 judgments have foundRussia responsible for the violations in the North Caucasus. These are very serious cases.That is something to hold on to. There are problems with that process, but nevertheless, Ithink it has been extraordinarily important and will be important.Looking forward, the European Court is adopting a more collective approach, which I thinkcould be very useful in the context of conflict situations we have been discussing today. It ismoving gradually from a focus on individual rights in individual cases and placing graduallymore emphasis on the collective approach and those sorts of applications can be useful for usin our various contexts. So we must speak up for the role of the European Court. It has beentarget of various criticisms from various politicians in the UK. In that debate we shouldremember the important the Court plays in all 47 States and not just in the UK.Copyright © 2013 Queen’s University Belfast and authors. 182

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013DENIZ ARBET NEJBIR: I would like to talk about Turkey and what kind ofchange would be useful. I think one of the main problems in Turkey is the Constitution. TheConstitution was made after the military coup in 1984. Despite certain changes made to theConstitution, this Constitution does not provide rights. Therefore, we need a newConstitution. Despite the European Union’s active protests, in a certain way, the cleaning ofthe Constitution will not be enough, unless we change it completely and make it a democraticConstitution. In that sense we need new political and legal systems, plus new institutionalframework, to make the judiciary harsher. In Turkey one of the big problems is judges.Judges protect the State, rather than the rights of the people. Therefore, we need a newpolitical Constitution to deal with such issues.In terms of the international arena, the European Court of Human Rights has been great atraising awareness of the Kurdish issue, but I would describe this as not an overly supportiverole when compared to the Inter-American Court of Human Rights. The Inter-AmericanCourt has better addressed group rights and how to respect victims and their families.Unfortunately in the Kurdish cases a lot of times the European Court has offered money, notjustice. This is not what the Kurdish people want. Nevertheless, the European Court hasplayed a big role in changing the legal system of Turkey, despite Turkey not really respectingthe Court’s decisions.Also we need new educational system in Turkey. The Turkish State has been exercising aculture of denial towards minorities. Up until a few months ago you had to take an oath ofTurkishness at school. Therefore, this mentality of education has to change in order to bringabout a true democratic society to challenge and bring about more rights.ANDREA BECKER: Lawyers and human rights defenders face problems formany reasons. Impunity is the problem and it is a large question. How do you end theimpunity? It would be the same for all of our contexts. It is not a grand solution, but I wouldsay awareness, advocacy and action are the key. Things are getting much worse on theground in Palestine and they will continue to get worse for a long period of timeunfortunately. The peace process is another farce.International opinion really does matter. The organisations that have been working over thelast few years are doing fantastic work, in very difficult circumstances. What they need isyour support. Information is out there. When a lawyer is arrested and charged nonsensicalthings, such as their work poses a security threat, Amnesty International is putting out alerts,the local organisations are putting out alerts. Awareness is important. It is important to alsocontact members of Parliament, local associations. It does not necessarily have to be thepolitical channels. Raising awareness of what is happening is very important.There are so many different things that are happening in Palestine, a lot of people getcompletely stuck and overwhelmed by how many issues there are. The best strategy is to pickan issue, learn about it and inform other people about it. You can work to bring lawyers here,or other human rights defenders. When their visas are denied or they have problems you raiseawareness about that. You can go to Palestine, it is unlikely you can get into Gaza, but youcan as an individual go and see for yourself what is happening. It is life changing. You can goto Palestine; you can see what is happening. That is absolutely important.Copyright © 2013 Queen’s University Belfast and authors. 183

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Taking action here, even if you do not have the ability to go there to see what is happening.There is much you can learn. There are companies that are profiting from what is happeningthere. For example, European companies are profiting from what is happening in Palestine.There is an excellent Israeli organisation called ‘Who Profits’ which indicates the companieswho are profiting from what is happening in Palestine. It is important to see which Europeancompanies are profiting from the occupation - helping build infrastructure and settlements,importing Israeli products, building prisons that are holding children and holding peoplecontrary to the Geneva Conventions. There are decisions that you can make in terms of whatyou support. These companies are being awarded contracts by our local councils andGovernment. In the ongoing privatisation of the legal system in the UK you can speak upabout these things.On an individual level, when you walk into a supermarket and you are buying some dates,kiwis or avocadoes. Check where they are from as you may be buying some settlementproducts. Checking labels are not something you always necessarily do, but these things arethings that you can do as an individual. You do not need to be a campaigner and it makes adifference. It is not necessarily going to directly impact what is happening one particularhuman rights defender or lawyer, but it is part of changing the system as a whole. Things arechanging.PROFESSOR SIMON UCHENNA ORTUANYA: From aconceptual approach, in Nigeria we have the human rights instruments. We have the AfricanHuman Rights Commission, which is an organ of the African Union, the Economic, Socialand Cultural Council of the African States. We have the African Charter on Human andPeople’s Rights to capture all the Universal Declaration of Human Rights. But within thecontext of various countries, we also have fundamental human rights provisions. In Nigeria,the Constitution which fights for constitutional and traditional rights, for example, the right tolife. But the problem is that in times of military resistance, the Constitution is stranded,fundamental rights are suspended, the courts’ jurisdiction is removed. This leaves room forillegal detentions and no option of going to court to challenge them. This is because thewhole structure and power is withdrawn from the courts. This is what Nigeria was goingthrough until 1999, when a democratic government came into Nigeria.Within this time frame there was a whole manner of violations of human rights. Lawyerswere under threat. We also recall that during this time frontline journalists were under threatof being killed due to their human rights positions and their killers are still at large. There wasa lot of fighting during this period, with people in and out of detention.In 1999 Nigeria came back to democratic rule. This was a little improvement, but lawyers arestill suffering. A lawyer was kidnapped in Nigeria about two months ago. Three years ago aMinister of Justice, who was also a lawyer, was murdered and his killers have not beenfound. In some instances lawyers have not just sat by. There was a case where a lawyer wasdetained and the Nigeria Bar Association went on strike.But on the point of what should be done, part of what should be done is political. There is aneed for political will. Also leadership must change and have a different approach.Copyright © 2013 Queen’s University Belfast and authors. 184

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Shakespeare would say “kill all the lawyers”, but in Nigeria we would say “bring back thelawyers”. It seems that it is only when lawyers are in the leadership in Nigeria that we havesome form of justice. We have lawyers in Government in my own State in south-east Nigeriaand it has as true rule of law as a result. This is because lawyers know what it takes. Inanother State in the very south of Nigeria, lawyers in Government also seem to be doing verywell. Therefore, we need more lawyers in a position of leadership as they would appreciatethe plight of lawyers more, than non-lawyers. We also feel that you need the law to protectrights, including lawyers’ rights, but there is also the matter of political harassment. A lawyerappears for the politician and the opposing politician would threaten the lawyer. These arethings that go beyond legislation; it is to do with the political will of Nigerian leaders.JUDGE ESSA MOOSA: I have this morning alluded to the statement of NelsonMandela at his inauguration as the first president of the democratic South Africa in May1994. I want to repeat the statement: “never, never and never shall it that this beautiful landwill again experience the oppression of one by another.”How did South Africans deal with that conflict?They adopted a final democratic constitution which provided for radical changes to the legalsystem by entrenching the bill of rights and elevating the Constitution as the supreme law ofthe country. All laws whether past, present or future are to be measured against the valuesenshrined in the constitution and any provision inconsistent with the supreme law is invalidand can be struck down.They established a Truth and Reconciliation Commission. The objective was to “bridge thegap between the past of a deeply divided society characterised by strive, conflict, untoldsuffering and injustice and a future founded on the recognition of human rights, democracyand peaceful co-existence for all South Africans.”The Truth Commission examined the role of the organised legal profession during apartheid.It found, save for a few committed and courageous lawyers, complicit in the application ofthe unjust laws of apartheid, which led to grave injustice and hardship to the vast majority ofthe people of the country.Following the adoption of the final democratic constitution and the findings of the TruthCommission, the organised legal profession in consultation with the Department of Justiceadopted the Legal Services Sector Charter. The Charter not only committed the organisedlegal profession comprising the Bar Counsel of South Africa and the Law Society of SouthAfrica but also the Government to the values, principles and objective enshrined in theCharter.The Charter is consistent with the UN Basic Principles on the Role of Lawyers. It states, interalia, that: “...professional associations of lawyers have a vital role to play in upholdingprofessional standards and ethics, protecting their members from prosecution and improperrestrictions and infringements, providing legal services to all in need of them , and cooperatingwith governmental and other institutions in furthering the ends of justice andpublic interest.”Copyright © 2013 Queen’s University Belfast and authors. 185

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013In order to protect the lawyers in time of conflict it is important that the organised legalprofession plays a pro-active role. It must ensure that the Constitution of the country in whichit operates guarantees to its citizens’ human rights and fundamental freedoms, the rule of lawand access to justice, separation of powers of the different organs of state and theindependence of the judiciary. It must ensure that these principles are not compromised bythe anti-terror legislation.In many countries the anti-terror legislation has eroded basic human rights and fundamentalfreedoms, the rule of law, freedom against torture, detention without trial, the law onextradition and rendition and judicial execution. I shudder to think how decent and lawabiding citizens of our countries will become the victims of these very measures.In this regard I am reminded of the saying of a prominent German pastor, Martin Niemoller(1892-1984) : “first they came for the socialists, and I did not speak out– because I was not asocialists; then they came for the trade unionists, and I did not speak out– because I was nota trade unionist; then they came for the Jews, and I did not speak out - because I was not aJew; then they came for me – and there was no one left to speak for me.”PROFESSOR SARA CHANDLER: There are three areas where thereaction can be taken for lawyers in Colombia. The first one is national, the second isinternational and the third one is to do with the legal profession.In the national context, impunity is the great evil because people get away with it.Paramilitaries are not investigated, prosecuted or convicted. If that needs political change,which I firmly believe it does. It needs the will to properly finance and resource theprosecution service and to make it safe for them to prosecute in these situations. It needs tobreak the link between paramilitaries and political actors. It also needs to ensure that theforeign multinational companies that are in the country do not use paramilitaries to furthertheir needs, which might often displacing people and killing local activists who oppose thosedisplacements. That sounds like a tall order and of course it is.The current key moment facing Colombia are the peace talks. Those are between theparamilitaries, the guerrillas, the army and the State, in order to try and build stepping stonestowards peace. One of the most talked about issues is general amnesty. The problem withgeneral amnesty is that it will not bring justice to the victims. Throughout, I have alreadymentioned impunity, the people who bring cases are the human rights lawyers. You canimagine that part of the legal community say that you cannot possibly have general amnestyas part of the stepping stones towards peace. What about crimes against humanity that havebeen committed? Massacres of villages? The disappeared people that have not been found?The murders and assassinations? You are invited to read that anything you can about thepeace talks. When doing so think about the process of transitional justice, which includes aspecial tribunal for Colombia. Those crimes against humanity have to be investigated.The second area concerns international actions. The International Criminal Court has so farbelieved that the Colombian State is doing its best to resolve these cases. Of course this isCopyright © 2013 Queen’s University Belfast and authors. 186

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013blatantly not true. The biggest recommendation for better protection we can make is that theInternational Criminal Court does proper investigations and actual cases.The third area is to see international pressure from the legal profession and the national legalprofession of Colombia. Until there is a fully constituted and legal entity, the national andindependent Bar Association, there is still not a collective voice for lawyers in Colombia. Sothat kind of protection does not exist. Disciplinary matters still are not in the hands ofindependent lawyers associations, they are in the hands of courts appointed by the State. Justlike human rights lawyers being arrested, they can also be put up on disciplinary charges andlicences taken away. So support for that change is very important, you can read about it in thework of the International Bar Association for Human Rights. The last part of that is what elsecan the international legal community do to assist Colombia lawyers? They can provideamicus briefs, as they help show that there is international law and jurisprudence that willassist the courts in Colombia on these cases.What about the multinational companies? Some of them are definitely listed in London andhave their Annual General Meetings in London. There is a lot of shareholders action that canbe taken now. The United Nations Guiding Principles on Business and Human Rights havebeen flouted, but back in boardrooms in London they are very proud of the fact that theyknow what the Guiding Principles are and they are implementing them. Yet they will asktheir local managers if security is ok? To which they respond yes, but there will beparamilitaries are providing the security. So these enormous contradictions exist. It is up tous, the international legal community, to expose them and do what we can. Please do go onreading about Colombia and visit the Colombian Caravana website(http://www.colombiancaravana.org.uk/) to find out more.RICHARD HARVEY: I see a lot of young faces, which absolutely thrills me,because I know that there is the new generation of activists in our mist, of people who areconcerned and really want to get out there and make a difference. I just want to say a coupleof things about my experience of being as fresh-faced and feeling rather what can I do at thatend? One thing that I was reminded of by Judge Moosa, when he spoke earlier, was my firstengagement with any kind of legal activity. This was when my very elderly and eminent headof chambers when I was a very young barrister, said “Important conference this weekend,Paris, anti-apartheid. You’re part of the anti-apartheid movement aren’t you? I can’t go, butyou go over there and see if you can lend a hand.” I was only 24 or 25 at the time. I arrived atthis conference, a small gathering of lawyers from all parts of the world. I found as a 24 or 25year old there was one thing I could that nobody else in the room could do was to write agood English sentence, because everybody else wanted papers written in English, but they allcame from countries that had good English, but was not quite right for the final resolutions.We all as lawyers resolve problems by passing resolutions. So I found myself sitting next tothe Chief Judge of the Soviet Union and lawyer formally from Nelson Mandela’s office onthe other, and a bunch of really eminent people, all at least two decades older than me, andfeeling what am I doing here? Then suddenly being pushed front and centre – we need you towrite this, to look at this draft. Suddenly I found there was something I could do.I also want to draw on the South African experience for a time when the apartheid regimewas getting ready to murder judicially Solmon Mantran, the first ANC activist for many yearsCopyright © 2013 Queen’s University Belfast and authors. 187

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013at that point to be executed. We organised a picket for outside the South African House inLondon. I reached out to all the other lawyers’ organisations, I proudly say I am a socialistlawyer, but there is a slight difference between that and a labour lawyer. The labour lawyerssigned the petition, the liberal lawyers signed the petition, the conservative lawyers signedthe petition. It did not save the life of Solmon Mantran, but what it did do was provide a basisto say “listen you joined in this, you can join in the next thing”. As we sit here today, believeme, at the age of almost 30 at the time, I never thought that I would see the day we hadNelson Mandela free and President of South Africa. I say that in connection of all thestruggles we are looking at today, when things seem absolutely impossible and unthinkable,there is sometimes the potential for conflicts to be overcome and it is sometimes just by eachof us recognising that there is that possibility that encourages us to embrace my old friend:Join Organise Engage Act Investigate Report.Then we can communicate better, get it out there better and, believe me, some of thesestruggles can be won.IRATXE URIZAR: From my point of view, to defend human rights defenders andlawyers we should support human rights activists at NGOs, they are closer to the ground.They are the ones that speak to victims, do good reports and are aware of the violations thatneed to be worked on in the courts and international mechanisms. Working together is a keyelement.The other is for lawyers to have really concrete reports to work with. First are internalmechanisms, though sometimes we know that it is just a way to get to international courts, asyou first have to exhaust domestic remedies. Second, is to use all the internationalmechanisms that we have, for example, the European Court of Human Rights. Keep informedall the other institutions, such as the High Commissioner for Human Rights, Council ofEurope, Special Rapporteurs, the Human Rights Council, the UN Committee Against Tortureetc. There are two types of work. This work is more technical, it is more focused to denouncelegal work. The second type is more about reporting, putting together documents, speakingout, taking part in conferences. Conferences, for example, are important for sharingexperiences.We are doing a great job, but we will always have the State in front. That said, if you aredoing a good job, the State will be afraid of you.SIMARJIT KAUR: Basically the problem that human rights activists have in thefield is getting somebody, such as yourselves, to stand with them and become a witness towhat has actually happened. Documenting, being the eyes and ears in the conflict zones isreally critical.Secondly, we should have better alert systems. What I have found in my 10 years ofexperience as a grass roots activist is that the big NGOs are brilliant, but they have becomeCopyright © 2013 Queen’s University Belfast and authors. 188

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013quite commercialised, bureaucratised and politicised. Unless you have a lot of time to findout where they are going, they cannot even latch on to a lot of evidence that is out there.What I would like is for there to be better record of the intimidation that human rightsactivists go through and as a colleague raised, that lawyers go through. I do not know howintimidation is currently recorded. It may be through individual Bar Associations, throughregional associations, but rather than have a silo affect, the internet would be a wonderfulplace if there were webpages put up and activists could get in touch to say that this ishappening to them in the field. I know the bigger groups do capture some of this, but by thetime they verify things and the various procedures that exist they may not be able to pick upwhat is a threat. Lawyers and human rights defenders place in the press is a critical area tocapture of terms of data.In terms of India, it has not allowed any truth commission to come forward. When the humanrights community wanted the People’s Commission it was not allowed to legally comeforward, even with the support of witnesses and family members that lost loved ones. Perhapsyou will come out one day on a holiday and offer assistance. What we are facing is that 20years after the conflict, the evidencing of the genocide is being undermined on a huge level.You as lawyers do have a lot more authority than you imagine, even if you are only at thebeginning of your studies or careers. You do have an awful lot of credibility. As a non-lawyertrying to write up documents about what is happening to widows is a very different game.More cooperation between the different NGOs would be a very good area to look at. It wouldbe great if something can come from this conference in terms of recording intimidationsfaced by human rights defenders, especially lawyers. India, as other countries, has putbarriers in terms of foreign funding. Amnesty International tried to set up their offices threetimes this year and could not because of the huge red tape around foreign funding.PROFESSOR COLIN HARVEY: To summarise, the themes that havecome through from each of these rich and diverse experiences are the sense in which NGOsand courts have a role. I noticed the European Court of Human Rights got a hard time. Therole of defending courts sometimes as well, that are doing the right thing in human rightsterms and coming under attack for doing that.It was interesting to hear the role of changing institutional contexts. For example, what canhelp is changing the human rights framing context. So having human rights instruments, butalso human rights institutions that are there to protect and uphold human rights. That soundedalmost like changing the human rights culture of society as well, as part of that process. Ofchallenging impunity, of making sure human rights violations in the past are challenged andpeople are held to account.It is also interesting to hear the role of professional associations. That is, lawyers as aprofession and judges and lawyers associations, and the role that they may have at a locallevel. Getting them to step up to the plate, to take this work seriously and then getting them todefend their members, but also to speak to each other around the world about what ishappening to their colleagues.Copyright © 2013 Queen’s University Belfast and authors. 189

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Also the sense of being supportive to people under pressure elsewhere. Universities can alsoplay their part in being supportive of people who are under severe pressure in other parts ofthe world. Of bringing people to universities, lending support, working out ways to be moresupportive. Not just in terms of academic staff, but also human rights students. This caninclude offering international assistance and support, and being willing to go elsewhere.In terms of challenging the actions of international and multinational corporations, if you aregoing shopping be informed about what to buy and what not to buy.Also we should reflect on our everyday lives and what change we can make there. This canmean being more supportive of each other. It struck me today during the presentations that itis very understandable that people can get quite low in this line of work. It can seem as ifnothing is ever going to change, but I think what has also been remarkable today is the sensein which, yes things can be grim, but even looking around the panel today, the sense in whichthings can also shift. Things that seemed unimaginable at one point in human history havehappened. This has happened within the human rights movement and anti-slavery movement,change can happen. It is important to support each other and remember that things aredifficult and can be difficult, but there is evidence in the experiences that we heard today thatthings can shift and move.Copyright © 2013 Queen’s University Belfast and authors. 190

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013PANEL DISCUSSION III: QUESTIONAND ANSWER SESSIONQ. Lawyers, particularly in times of conflict, can be the mouth piece for the wonderfulvalues and principles. What is the particular value for lawyers in oppression? How doesthis fit within the debate of human rights realism and idealism? Political realities canpush in a different way, such as amnesty. How sharp a tool are human rights in thiscontext. What does this mean at a domestic level? How sharp a tool are human rights inthese contexts?Richard Harvey: Human rights are a blunt instrument. They are also relative in differentcontexts. Lawyers murdered in this region and in others. The newspaper articles in Britain bycomparison to the devastation in the Philippines. You use the tools for all the benefits youcan get out of them. But there is always a tension. That is why we become lawyers in order toprotect individuals.Professor Philip Leach (Russia): My own professional journey in the UK and the formerSoviet Union. Despite the difficulties it can be extraordinarily incisive. The families ofvictims are able to tell their stories to judges. The prosecutors are terrified turning up. Thatprocess was extraordinarily important. This is the tip of the iceberg. The Court is not perfect,but it has teeth to it. It provides internationally legally binding obligations to change the law.For example, telling the UK to change law on terrorism.Professor Simon Uchenna Ortuanya (Nigeria): When you are speaking from a classroom,within the context of international law the human rights violation is a violation. In terms ofenforcement, the relativist argument comes in. Because the enforcement mechanism may bedifferent from one context to another. What is universal is that the violation remains aviolation. It should be pursued and should be enforced.Q. The Chinese Government is hostile, but they seem to be more receptive toprofessional criticism because it is less political and more professional. This has comeup in the context of Colombia. The Israeli Court system has also been given praise. Doyou think professional activism and delegations of lawyers are more useful? Are welacking in Europe by having a collective voice?Professor Sara Chandler (Colombia): Specifically in the context of European Humanrights organisation. They are active and fairly big but this is only grass roots. Localorganisations have been very active in Turkey (trial monitoring, capacity building exercises,providing advice etc). The participation in activities is really important. There is activity inBrussels. Looking at what is happening is very important. We look at other countries, but weshould not forget about our own countries as well. For example, the closed court proceedingsCopyright © 2013 Queen’s University Belfast and authors. 191

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013happening in England and Wales. There is the potential for action, we may not be widelyvisible, but we are there and it is important.Andrea Becker (Palestine): There have been lawyers delegations in Palestine, particularly tolook at the treatment of children in military courts. As a result of these visits, findings andrecommendations, ultimately findings have been adopted by the British government. Howmuch impact this will have we do not know, but it is a part. It is important to actively engagein issues. This really came about due to the activities of NGOs and activists. On the groundthings are slow, but it is important. The media is on the ground. International organisationsmake a great contribution. Solidarity is very important.Deniz Arbet Nejbir (Turkey): Turkey has help and solidarity with Kurdish lawyers. This ison the basis that the State wants to isolate lawyers on the ground. They have sanctions on themedia, particularly regarding prisoners and the activities of lawyers. Therefore, solidaritygroups make a big contribution in order to raise the issues internationally. The President ofthe Lawyers’ Association in Diyarbakir was arrested in 2009 on the basis of a speech in madein Westminster Parliament, not for his activities in Turkey. Turkey wants to completelyisolate lawyers in Turkey and on that basis solidarity is very important. With regards towhether lawyers should be activists - if you work on the ground and see the abuses, youcannot remain inactive. You have to do something or be blind.Simarjit Kaur (India): Regarding professional criticism. We have to think as laterally aspossible as activists. In human rights there is nothing that is just determined. It may bepossible to come up with something really critical, if you exchange ideas. What happenedwith the Punjab. Khalra was not a human rights activist, but started to uncover evidenceregarding the mass cremations. His breakthrough in gathering evidence came from aconference of activists in Nepal where someone stated that there are clues in the system. Itwas pointed out that India is based on the British system and the police are slipping upsomewhere. They managed to start thinking laterally and traced it back to the wood that wasused in the crematorium. I would urge with everyone to think laterally. To go into conflictzones, to visit places, by doing so you can achieve quite a lot.Audience Statement: My name is Muhammad Masood from Pakistan. On the issue ofhuman rights, I am amazed to see the attitude of the modern world. When there is a disease ina world, work is done to cure that disease, it is the same regarding human rights. Theviolation of human rights is so old, but still we are legal scientists and we are still unable tocorrect it. The issue seems to be fairness. The issue appears to be the lack of acceptance ofthe legal community as the fourth pillar of the State. There is a lack of readiness to accept thelegal community as a part of the legislature and judiciary. We are always treated as a separateentity, this is a very serious issue. I remember a very serious violation. We saved a man onlyto kill him again despite there being human rights and the rule of law. Yet you will not learnfrom the backseat. I ask the speakers and my friends in legal education. What about fairnessin the area of human rights? We have a lot of facilities, but no peace. We need peace, notfacilities. We have reached Mars and the depths of the sea, but we should be practical andshould not delay in addressing the issue of human rights violations. It will take more time, butwe should not delay.Copyright © 2013 Queen’s University Belfast and authors. 192

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013Q. How do human rights fit within the rule of law?Professor Sara Chandler (Colombia): One of the major concerns that the legal professionhas is the extension of their work overseas. The Law Society of England and Wales doeswant to address that. They do talk to systems in other countries, but none of that means muchif the country does not have a stable system and the rule of law is not paramount. Therefore,practice over cross-border issues would have no meaning in an area that is not particularlystable, like in Colombia. Yet British Government thinks it is a great idea.Without access to justice and the protection of human rights, the rule of law is not operatingeffectively. Domestic institutions that are part of Government delegations should also beasking about human rights, what about protection to justice? Some things make it verydifficult, as shown in my presentation in Panel II. For years the European Union, Canada andthe USA were negotiating trade agreements with Colombia. Had it not been for the pressureof human rights activists there would not have been human rights clauses in the free tradeagreements. They are not completely effective systems, but they give lawyers a platform tosay human rights are being violated, why are these trade agreements continuing? It is lookingat laterally the economic and the legal. It is so clear that what the economic necessities are inencouraging each Government to take action. The free trade agreement colludes with theviolations of human rights, even though it has human rights clauses.CONCLUDING REMARKSPROFESSOR COLIN HARVEY: What has struck me is the sense inwhich this discussion has widened out into lawyers AND human rights defenders. The sensethat legality means more than the law that might be in one country. We often talk aboutglobal conversations. What has been amazing about today is that it is a genuinely globaldiscussion.Concerning abuses to human rights defenders - the important part of today’s discussion is thenetwork and the people. That we hear an interesting case, that we spot an interesting strategy.The sense in which we go on beyond today. That the conversation continues.The distances that people have travelled to be here. We are in transition here to a better place.The remarkable way in which this has been organised, but it has been utterly student leadorganised event. New voices are coming through. Regarding the role of defending legalityglobally and locally, please let's all keep talking to each other and sharing our experiences.Copyright © 2013 Queen’s University Belfast and authors. 193


[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013MEDIA REPORT ON CONFERENCELawyers in the Line of FireBy Jonathan Rayner (Law Gazette, 2 December 2013)Lawyers across the globe are being murdered, unlawfully detained or assaulted for goingabout their work of representing clients.Defending human rights is a dangerous career choice, but there seems no shortage of peoplewilling to risk their lives for the common good. One such defender is veteran internationalhuman rights lawyer Richard Harvey. He gave the keynote address at a conference titledChallenging the Oppression of Lawyers in Times of Conflict, held at Queen’s University,Belfast last month.His opening words were: ‘Those who would give up essential liberty to purchase a littletemporary safety deserve neither liberty nor safety.’ He was quoting Benjamin Franklin, oneof the US’s founding fathers. Franklin’s words, dating from 1759, still have resonance today,said Harvey, before proceeding to outline his long career in championing the right of lawyersto do their job effectively and in safety.In 1976, he travelled to Germany, on behalf of the Haldane Society of Socialist Lawyers, tomeet the defence lawyers for urban guerrilla gang Baader- Meinhof. The German state hadamended its laws to take away the gang’s right to choose their own lawyers and Harvey, in amove likely to alienate all but the most committed supporters of the rule of law, added hisvoice to the protests this measure had provoked. On returning to the UK, he was interviewedby the BBC and discovered ‘those plummy voices were not on our side at all’, he said.Five years later, his criticism of Diplock courts, which the UK government had introduced toNorthern Ireland in August 1973 and where cases were heard by a judge sitting alone,suspending the right to trial by jury, also caused a furore. It even led one newspaper to accusehim of backing the IRA. ‘Even today I’m sometimes accused of supporting the IRA,’ saidHarvey, ‘which shows how headlines stick.’Still on the subject of Northern Ireland, Harvey said: ‘Human rights lawyers in Belfast reportthat they are getting the same threats from the police today that they experienced in the1970s.’ Belfast lawyers Pat Finucane and Rosemary Nelson were killed in 1989 and 1999respectively. ‘There have been accusations of collusion between loyalists and the securityservices,’ Harvey said. ‘There cannot be public confidence in any government agency thatcolludes by turning a blind eye to the wrongful acts of its agents.‘When the state ignores the public interest, what can we do? All of us can do something. Ahuman rights conference where delegates leave and do nothing is a failure.’Professor Kieran McEvoy of Queen’s University examined the ways in which NorthernIreland lawyers responded to the challenges of entrenched discrimination, sustained politicalviolence and the transition from conflict. ‘Northern Ireland is a small place, but society wasuniquely divided along sectarian lines,’ he said. ‘Those lawyers who stood up for civilCopyright © 2013 Queen’s University Belfast and authors. 195

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013liberties were self-evidently heroes, and yet they were swimming against the tide within theirown profession and were dismissed as politicising the law.’He said the Troubles were ‘an era characterised by the failure of the law and lawyers’, and bya ‘culture of quietism’ in which it was ‘best not to discuss these matters’. It was also an era inwhich lawyers sought refuge in ‘legal positivism’, said McEvoy, which held that ‘the law isthe law is the law, without a political or moral dimension’. He said: ‘It was safe territory forlawyers. If you are in the middle of a war, batten down the hatches. There was a real threat tolawyers’ lives.’He concluded with two questions: ‘What is it legitimate to expect from lawyers in a conflict?Should they all be fearless human rights activists or simply skilled advocates for clients?’One Belfast firm, KRW Law, chose the human rights option and, according to partner NiallMurphy, was experiencing ‘worse intimidation this year’ than it had since the peace processbegan. On 10 August 2013, Northern Ireland secretary Theresa Villiers sought an emergency– and secret – injunction against the firm to stop it revealing the findings of a 40-year-oldinquest, he told the conference. Another government minister had passed the inquest papersto the firm that same afternoon.Going further back, Murphy showed the Gazette a 2004 message that the police hadforwarded to the firm from a rogue loyalist group. The message said that the group was goingto attack ‘Kevin Winters & Co’, as the firm used to be known, ‘due to the fact that they arestill dealing with dissident republicans’. Murphy alleged that the police had also made hostilemoves against the firm, including threats of arrests, verbal abuse and covert surveillance. ‘Adetective constable told me I was a liar and unfit to represent clients,’ said Murphy.Moving outside the UK, Kurdish human rights activist and lawyer Deniz Arbet Nejbir saidthat Turkey has become ‘an open prison for lawyers, since it imprisons more of them thanany other country in the world’. He blamed the repression and intimidation of Kurdishlawyers on the ‘politics of denial towards multiculturalism within Turkey’.Turkey’s application to accede to the EU raised hopes that Turkey would become a moredemocratic country, but in fact the repression of Kurdish lawyers has worsened sinceNovember 2011, when 46 lawyers acting on behalf of Kurdistan Workers Party leaderAbdullah Ocalan were arrested, Nejbir said. Some 15 more lawyers seeking to represent thedetained lawyers were also subsequently arrested.He recounted how a judge showed a blatant assumption of guilt when he warned a defendantto keep quiet until ‘I consider the point you want to make when I sentence you’.Solicitor and human rights law professor Philip Leach, of Middlesex University, is alsodirector of the European Human Rights Advocacy Centre. He told the conference that hisfocus was Russia, particularly the North Caucasus republics of Ingushetia, Chechnya andDagestan. It is an area where abuses are ‘systemic and egregious’, he alleged, and where theacquittal rate in court is just 0.7%. Leach said: ‘The court system is designed to hand outsentences, not justice.’He is pessimistic about the prospects for the rule of law, citing a new Russian law that targetsnon-governmental organisations (NGOs) and others that receive foreign funding and that willCopyright © 2013 Queen’s University Belfast and authors. 196

[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013in future have to register as foreign agents. ‘The term has the same implications in Russian asit does in English,’ said Leach. ‘It is an existential threat to NGOs.’The threats to lawyers take many forms, said Leach. In one instance, a lawyer’s 17-year-oldson was abducted for some hours; the family has now left the region. Other lawyers havereceived death threats, including one who was subsequently injured in a suspicious caraccident. Clients are threatened, too, he alleged. When lawyers plan to take a case toStrasbourg, rumours are spread about their incompetence or links with state authorities. Onesuch lawyer who went to Strasbourg was abducted and has never been seen again.Lawyers’ phones are tapped, their offices searched and libel actions are brought against them,alleged Leach. A female lawyer was beaten up at a police station for seeking to see her client;when she complained, she was prosecuted and had restrictions placed on her movements.Another female lawyer was abducted and her body later found in another of the region’srepublics, North Ossetia. A lawyer representing a journalist who had reported on violations inChechnya was killed in Moscow. Another was shot dead on the street in Dagestan.Andrea Becker, a London-based barrister who has spent the last 15 years focusing on humanrights and humanitarian law within the Israel-Palestine conflict, told the conference much thesame story. She talked of the ‘organised vandalism’ of the Israeli soldiers who raided heroffice in Palestine, smashing computers, severing cables, taking hard disks and laptops awayand ‘even despoiling the toilets’.The West Bank is a country under occupation, she said, with ‘military checkpoints,roadblocks, curfews and roads for Israeli use only’. The physical barriers are reinforced by a‘system of permits’, homes are demolished, agricultural land confiscated and farmers areroutinely ‘shot at by soldiers’. The system of justice is ‘rigged’, she alleged, with a ‘94.7%conviction rate’, children routinely detained and claimants needing ‘a £5,000 deposit to bringan action against Israel to the courts’.Becker said: ‘In Palestine, you learn about human rights because of their absence. Lawyersare not special in any way. We have the same problem getting to work and seeing clients. Weall face the same risks, whether we are ambulance drivers or activists.’Chair of the Law Society’s human rights committee, professor Sara Chandler of LondonSouth Bank University, spoke to the conference about the South American republic ofColombia, a nation racked by conflict for the last 60 years, with some five million displacedpersons and 15 lawyers murdered so far in 2013. (See Gazette opinion attinyurl.com/nvsl2kn).Her final words were: ‘Get involved!’How to get involved? The message from the conference was that not everyone is cut out to bea hero. But everyone can join a pressure group, write to their MP, confront an ambassador,observe trials, sign petitions and report what they learn. Everyone can also resist allowing thestate to take away some of our liberty in the interests of security – before we find, toparaphrase Benjamin Franklin, that we are no longer worthy of freedom or security.Article available at http://www.lawgazette.co.uk/law/lawyers-in-the-line-of-fire/5039012.articleCopyright © 2013 Queen’s University Belfast and authors. 197


[CONFERENCE REPORT: CHALLENGING THE OPPRESSION OF LAWYERS INTIMES OF CONFLICT] 2013ONLINE RESOURCESAn electronic summary of conference information can be accessed at:http://blogs.qub.ac.uk/lawyersinconflictconference/Including photos:http://blogs.qub.ac.uk/lawyersinconflictconference/post-conference/photos/Audio-visual recordings of the conference are available at:http://www.youtube.com/user/HRConferenceQUBhttps://vimeo.com/channels/526710An electronic version of the Conference Report is stored at:http://www.qub.ac.uk/schools/SchoolofLaw/FileStore/orhttp://blogs.qub.ac.uk/lawyersinconflictconference/post-conference/Tweets concerning the conference can be viewed at:https://twitter.com/HRConferenceQUBCopyright © 2013 Queen’s University Belfast and authors. 199

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