Simon Crowther is a freelance writer and trainee barrister. He is currently a Fulbright Scholar at Northwestern University.

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Simon Crowther is a freelance writer and trainee barrister. He is currently a Fulbright Scholar at Northwestern University.

Cambodia brings Khmer Rouge leaders to justice

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Khieu Samphan, the former Khmer Rouge head of state, awaits his verdict. ECCC under a Creative Commons Licence

On 7 August, the Extraordinary Chambers in the Courts of Cambodia (ECCC) convicted Nuon Chea and Khieu Samphan, two of the Khmer Rouge’s most senior figures, for crimes against humanity. In just four years, between April 1974 and September 1979, an estimated two million Cambodians lost their lives, a quarter of the population.

As part of a Maoist project to reshape society, citizens of Cambodia’s cities were forced to move into communes – effectively forced labour camps where they were treated as third-class citizens. Those associated with the regime of Lon Nol, who had been president between 1972 and 1975, were executed, and thousands starved to death.

Today, the pain suffered in the 1970s is still palpable. Large memorials full of bones and skulls are far from uncommon, and many of the country’s citizens still have visible scars. To quote a Cambodian friend, ‘in Cambodia, everyone is traumatized’.

The Khmer Rouge regime came to an end in 1979 with the invasion of Vietnam. In a cruel application of Cold War realpolitik, the Khmer Rouge still maintained Cambodia’s seat at the UN until 1992, with the support of the General Assembly. An enemy of Vietnam was considered an ally of the West, and attempts to bring those responsible to justice faltered.

Illustrative of the international support provided to the deposed Khmer Rouge leadership was British prime minister Margaret Thatcher’s decision to send the Special Air Service (SAS) to train them in order to defend the small portion of Cambodia still under their control.

In 2011, the trial of four senior Khmer Rouge leaders eventually commenced. At Cambodia’s insistence, the trial took place on the outskirts of the country’s capital, Phnom Penh, rather than in a neutral, international location. Local participation has been impressive, with almost half of the major court roles held by local lawyers, and the presidency of the court held by Nil Nonn, a Cambodian judge.

However, this has also led to accusations of corruption, nepotism and political pressure. International donor fatigue has at times crippled the tribunal, with staff striking after prolonged periods of going unpaid.

Of the four senior leaders originally charged, only two have made it to the end of the trial. Ieng Thirith was declared unfit to stand trial in 2011 due to Alzheimer’s disease, and Ieng Sary, the Khmer Rouge’s foreign minister, died in 2013. As a result of fears that the trial could take longer to complete than the accused would live, the trial was split into two, with the first mini-trial focusing on very specific historical events – the evacuation of Phnom Penh, the forcible movement of the population and the killing of Lon Nol officials at an execution site called Tuol Po Chrey.

This split has proven highly controversial as for many, the prosecution included, these events fail to provide a representative sample of the atrocities perpetrated under the Khmer Rouge regime.

That the ruling brought two of the Khmer Rouge’s most senior leaders to justice is no small feat.

Nuon Chea was Pol Pot’s second-in-command, and Khieu Samphan, the Khmer Rouge head of state. However, the retributive utility of an 88-year-old and an 83-year-old being given life sentences is questionable; at a cost of $200 million, many in Cambodia question whether the resources spent on the trial could have been better used elsewhere.

Modern-day Cambodians have a life expectancy of just 63, and child labour is rife. Both defence teams have already announced their intention to appeal against the verdict, and given the defendants’ age and ill health, there is a significant chance they will not survive to the end of their appeals.

One can only hope that knowing two Khmer Rouge leaders have been brought to justice will have some long-term restorative effect in Cambodia, and that history will remember kindly the belated and expensive endeavours to bring them there.

British government to make terror suspects stateless

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Have you conducted yourself 'in a manner which is seriously prejudicial to the vital interests of the United Kingdom?' Wikipedia under a Creative Commons Licence

Controversial provisions of the proposed Immigration Bill, which is currently making its way through the British Parliament, risk granting the government the power to make its citizens stateless – expelling them from the country and stripping them of their nationality, even when they have not been convicted of a crime.

These provisions would apply to anyone who was not born a British citizen, even when they have no other nationality – effectively rendering them stateless.

For the government to exercise this power, the person has to have ‘conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom.’ The power is intended for use in national security cases – where the person having their citizenship withdrawn is accused of involvement in terrorism – though there is no reason why it couldn’t be used in other circumstances.

The right to citizenship is of great importance in both human rights and constitutional law, to the extent that the US Supreme Court famously declared that it is ‘the right to have rights.’ Numerous international instruments, not least the Universal Declaration of Human Rights, enshrine the right to citizenship. While exceptions in international law do allow for the revocation of a citizenship even where no alternative is held, these should be treated with immense care. Statelessness is a dangerous legal limbo and an ineffective measure in countering radicalization or international terrorism.

Expelling a suspect from Britain is a poor substitute to trying them fairly of a crime. Indeed, the fact that the power could only be used on those who have gained their British citizenship in their lifetime, and were not born with it, risks further alienating already marginalized immigrant communities.

Once excluded from Britain, there is no reason to assume someone would be any less of a terrorist threat.

Compounding this already dangerous state of affairs is the appeals process available to those whose citizenship is withdrawn. When national security reasons are the state’s justification,  which it’s likely to be in most cases, this appeal will be heard in secret, with the person appealing barred from much of the court proceedings. They will be unable to challenge the evidence which is being used to argue that they have conducted themselves in a way which is seriously prejudicial to the interests of the state. Instead, a security cleared lawyer, called a Special Advocate, will be appointed to see the classified evidence on their behalf. This lawyer will then be allowed next to no further contact with the person they represent.

In August 2013, powers under schedule 7 of the Terrorism Act 2000 were used to detain David Miranda, the partner of Glenn Greenwald, a journalist covering the Edward Snowdon case.

Miranda was carrying documents that the British government claimed were sensitive for reasons of national security. Yet the stories that Greenwald wrote based on contact with Snowden, a former contractor at the US National Security Agency (NSA), told how the general public had been subjected to extensive illicit internet and phone surveillance by government intelligence services.

This is a prime example of how powers passed by parliament to combat terrorism pose a major risk to civil liberties and, in this case, press freedom.

These measures, despite their significance, have been tacked on to the Bill at the 9th hour with insufficient time for proper parliamentary scrutiny. On Wednesday 7 May, the House of Commons reinstated them after they had been stripped out by the House of Lords. An amendment now means that the government must ‘reasonably believe’ that the person being deprived of their citizenship is able to become a national of another country.

However, the decision over whether this is a ‘reasonable belief’ will be decided behind closed doors, without due legal process.

We can only hope that the House of Lords will be wise enough to remove the statelessness provision again.

‘Secret courts’ jeopardize justice

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closed material proceedings have been called ‘fundamentally unfair’ bloomsberries, under a CC License

Imagine a court system in which the person bringing the case is excluded from the proceedings. They are not allowed in part of the hearing, nor to find out what was argued. Neither is their legal team. Instead they are represented by a government-appointed lawyer. The court’s judgement may be known to the public and the person bringing the case, but not all the reasons for which it came to its conclusion.

This is the system that was approved by the British Parliament on 26 March as it passed the Justice and Security Bill. This system is specifically intended to be used in cases concerning the gravest allegations of government complicity in human rights abuses such as torture, rendition (abduction) and unlawful detention.

The government has argued that under the present system they have often been unable to defend themselves. This, they say, is because the evidence they would rely upon is classified and cannot be put before an open court as it could put the security agencies at risk. It is also argued that some of the evidence has been supplied on a confidential basis by other countries, and so if  it were disclosed there could be repercussions on international intelligence sharing.

The system that will now be introduced is known as a ‘closed material procedure’. It allows courts to enter a ‘closed session’ for part of a hearing, in which they will hear arguments about national security evidence without all the parties to the proceedings being present. In effect, where the government is accused of breaking the law, through actions such as complicity in rendition and torture, it will be able to defend itself by relying upon classified material, while every other party is excluded from the court-room.

Those who have been excluded are to be represented by a ‘special advocate’ – a security cleared lawyer who is appointed on their behalf. In the limited instances in which closed material procedures are already in place, communication between special advocates and the people they have to try to represent is severely restricted at best, or non-existent at worst. This is so that none of the classified material is revealed. In practice, such procedures mean that the special advocate is unable to take instructions from the person they are supposedly representing. In fact, the special advocates have unanimously stated that closed material proceedings are ‘fundamentally unfair.’

At the end of proceedings, non-government parties may win or lose their case without knowing why, as the court’s reasoning will likely be classified. Such closed proceedings are a ‘departure from the foundational principle of natural justice,’ as the special advocates have so aptly put it.

The British government has reached out of court settlements in two notable claims over recent years: A group of former Guantanamo detainees, who had alleged British complicity in their detention and torture, reached a settlement in 2010. The government now claims this settlement was reached because it could not defend itself in open court using confidential materials. Yet at least one of the detainees, Binyam Mohamed, already had a Court of Appeal judgement accepting that ‘UK authorities had been involved in and facilitated the ill-treatment and torture to which he was subjected while under the control of US authorities.’

Further, at the time the case was settled the government was still arguing in preliminary proceedings that they should be allowed to use closed material proceedings before the court. They were appealing to the Supreme Court precisely on this ground, yet they settled before the court issued its judgment. As such, even by their own argument, they could not have been sure that they would have been unable to defend themselves at the time of settlement.

So it seems doubtful that undisclosable evidenced was the reason government lawyers feared they would lose the case and thus chose to settle.

Most recently, the British government settled a claim by Libyan national Sami al-Saadi that MI6 were involved in rendering him and his family, including his young children, to Libya while it was under the dictatorship of Colonel Gadhafi. His accusation was corroborated by correspondence found by Human Rights Watch between the Libyan intelligence agency and the CIA. It stated that ‘we are… aware that your service had been cooperating with the British to effect [Sami al Saadi’s] removal to Tripoli’.

We cannot know what evidence the British government would present to a court to defend itself. Even so, it seems nonsensical to argue that being able to present classified evidence would have won these cases for the government while there is compelling evidence it has been complicit in severe wrongdoing.

The Justice and Security Act will create a significant impediment for those claiming British complicity in the most horrendous human rights violations. Closed material procedures jeopardize the claimant’s right to justice in the name of so called security.

Secret hearings will undermine open justice in Britain


Earlier this week, the Justice and Security Bill entered its second reading in the House of Lords. The Bill is supposed to safeguard the UK’s ‘national security’. Yet it is clear that the notion of ‘security’ embraced by its proponents is deeply flawed. In the words of Lord Pannick QC at the Lords reading on Tuesday, the Bill will ‘undoubtedly damage the ability of the courts to give judgments that are fair and are seen to be fair.’

The Bill’s primary aim is the introduction of secret hearings, or ‘Closed Material Procedures’ (CMPs), across the UK civil court system. This will mean that ministers can apply for non-criminal courts to hear sensitive material in ‘closed session’ for national security reasons. The Bill is likely to have the greatest impact on cases involving accusations of state complicity in torture and other serious human rights violations such as illegal detention and rendition.

Under the new rules, the person bringing the claim against the state, the claimant’s legal team, and anyone who has not been security vetted would be excluded from the secret hearing. Their interests would instead be represented by a security-cleared barrister called a Special Advocate.

The problem with these kind of procedures is that they allow the government to rely upon evidence that cannot be properly challenged, while also stopping the public from being able to follow the entirety of the case.  Special Advocates condemned the secret hearings in their consultation response to the Justice and Security Bill, saying that where they are already in use they ‘represent a departure from the foundational principle of natural justice’ and, despite the assuaging role of Special Advocates’s, are ‘fundamentally unfair.’

The government claims they need the bill in order to use intelligence material in court which, if disclosed, would endanger Britain’s international intelligence-sharing relationships and reveal the shadowy techniques of the security services.

The state is keen to avoid a repeat of the case of Binyam Mohamed, a former Guantánamo detainee. In his case, the Court of Appeal ordered the disclosure of evidence that Mohamed had been tortured. This violated the ‘control principle’, which dictates that where a country shares intelligence (in this case the US) it is for that country to decide when it is disclosed. Thus, it is argued that unless the UK has a law that prevents such disclosure, the US could decide not to share information about, say, a potential terrorist attack.

But the assertion that the US would stop sharing intelligence with the UK simply does not stand up to scrutiny. Shortly after the judgment in the Mohamed case, a White House spokesperson – predictably – said that ‘we need to redouble our efforts to work through this challenge, because the UK remains a key partner in our collective efforts to suppress terrorism’.

The idea that one of the UK’s closest allies would fail to disclose details of a terrorist plot is ludicrous. It appears more likely that the arguments put forward by the then-Foreign Secretary were geared at dodging a public debate about the role of the British Security Service in the mistreatment of Binyam Mohamed.

The bribery case against arms company BAE Systems is one poignant example from recent ‘national security’ case law, which shows the worrying degree of deference the judiciary is prepared to pay government in these matters. In the 2008-case of Corner House Research v Serious Fraud Office, the British government closed an investigation into whether BAE Systems had bribed the Saudi Royal family, on the grounds that Saudi Arabia was threatening to stop sharing intelligence.

The High Court was not so easily swayed. In a strongly-worded judgment, it found that closing the investigation on these grounds would be damaging ‘not merely to the reputation of the Serious Fraud Office … but to the reputation and very existence of the rule of law.’ But sadly this ruling was later overturned by the House of Lords, then Britain’s highest court, who found the director of the Serious Fraud Office to have acted lawfully in balancing the public interest.

The Corner House case points to the fundamental flaw in the government’s narrative: the suggestion that we must balance justice and security. This idea fails to acknowledge that justice and security are two sides of the same coin. The security of the nation is not the ability of its citizens to go about their business without harm, but rather the protection of the nation itself. It is this security, and our core societal values, that are threatened by this Bill. 

Abu Qatada: when the net tightens on justice

Lady Justice is a familiar London landmark – but justice for those accused of terrorism offences is not so easily found.

James Cridland under a CC Licence

As sensationalist tabloid headlines lambast Britain’s Home Secretary Theresa May for her failure to get Abu Qatada, the country’s number one terrorist suspect, deported, relatively little attention has been paid to how counter-terror policy undermines the rule of law. Abu Qatada, a Jordanian national, was arrested and held in October 2002 under The Anti-Terrorism, Crime and Security Act 2001, which allowed the indefinite detention without trial of international terrorist suspects. Ten years later, he has yet to face an open trial.

He is accused of fundraising on behalf of terrorist organizations and making public statements in support of their violent activities. In Jordan he has been tried in absentia and found guilty of conspiracy to cause explosions.

Yet rather than charge Qatada with one of many terrorism offences for which the courts claim there is strong evidence, the Home Secretary (David Blunkett at that time) instead opted to detain him indefinitely without trial. Unsurprisingly, in the 2004 case of A and Others, the House of Lords held that the indefinite detention of foreign national terrorist suspects was incompatible with the European Convention on Human Rights. Lord Hoffman, one of the judges on the case, remarked in relation to The Anti-Terrorism, Crime and Security Act 2001 that ‘the real threat to the life of the nation... comes not from terrorism but from laws such as these.’ As a result, the Prevention of Terrorism Act 2005 hastily introduced a control order regime, allowing the Home Secretary to place stringent conditions on terrorist suspects’ movements and introducing strict limits on the amount of time they are allowed out of their place of residence. Again, all without trial. Qatada was placed under such an order for a few months before being detained again pending deportation.

Appeals against the decisions of the Home Secretary were primarily made to the Special Immigration Appeals Commission (SIAC) – a court with procedures described by the Joint Committee on Human Rights as ‘Kafkaesque’ and ‘against basic notions of fair play as the lay public would understand them’. When appealing to the SIAC, alleged terrorists and their legal teams are not permitted access to all the evidence against them. Instead, ‘special advocates’ are appointed to challenge classified material on their behalf. Having seen the classified material, however, the special advocate is allowed minimal contact with the accused and therefore has to represent them without being able to discuss the evidence. This is intended to protect the methods of the security services, their sources and their relationships with foreign intelligence agencies. In practice, it means the accused is often unaware of the case against them. Qatada has had insufficient opportunity to challenge effectively his ongoing detention and certification as a terrorist suspect.

Whereas in a criminal trial the prosecution must demonstrate guilt beyond reasonable doubt, before the SIAC the standard is reasonable suspicion. Yet for justice to be done, guilt must be established beyond reasonable doubt under the safeguards of the criminal legal system, regardless of the strength of evidence and the gravity of the accusations facing an alleged terrorist.

One of the most disturbing features of recent British counter-terrorism policy is the use of Memorandums of Understanding (MoUs). These are diplomatic assurances under which terrorist suspects are removed to countries otherwise deemed too dangerous for deportation. Britain has entered MoUs with Jordan, Ethiopia, Lebanon and Libya, and has a similar agreement with Algeria. None of these countries are honouring their legally binding obligations under the UN Convention Against Torture, yet it is asserted that non-legally binding MoUs will ensure the safety of deportees from mistreatment. In its most recent judgment on the Qatada case, the European Court of Human Rights notes the criticism that such agreements undermine the existing framework for the prevention of torture and are intrinsically unsafe. Yet the court concludes that an MoU with Jordan would safeguard Qatada against ill treatment. It seems irrational to assume that fear of condemnation from Britain, for breach of a diplomatic agreement, is sufficient to safeguard a deportee accused of international terrorism. In breach of international law, Jordan has failed to curb systemic torture and to allow international monitors to interview detainees.

Qatada has now been refused leave to appeal to the Grand Chamber of the European Court of Human Rights. In deporting foreign nationals to face trial in countries where torture is systemic, Britain is endorsing dangerously unsafe legal proceedings. It is also jeopardizing the binding legal framework that unconditionally prohibits torture. This is not bringing terrorist suspects to justice. It is undermining it.

Simon Crowther is a trainee barrister and has published research on the Special Immigration Appeals Commission.