The death penalty is, in fact, torture

Judge delays Daniel Lewis Lee execution hours before he was set to die

I have extensively written about the death penalty as it is practiced and enforced in the United States, specifically targeting one fascinating and groundbreaking dissent in Glossip v Gross.

The Supreme Court of the United States (SCOTUS) has since then changed, with the arrival of Justices Gorsuch and Kavanaugh. Since then, the Court has not managed to issue a single stay of execution, and most of the decisions were split along the expected partisan line. In Barr v Daniel Lewis Lee, which resulted in the execution of the plaintiff on July 14th, 2020, four Justices dissented – Justices Breyer, Sotomayor, Kagan and Ginsburg – on the basis that the interpretation of the definition of torture in the majority opinion failed constitutional standards.

They’re correct.  While the congressional reservations emitted at the time of the ratification of the CAT deserve every ounce of attention on the part of human rights defenders, this piece will focus on the judicial interpretation of the 8th Amendment – one of the few fundamental human rights cited in the Constitution – and the evolution of the Court’s position on the capital punishment.

This case concerned the federal death penalty, abolished 17 years ago.

I – the majority opinion and the “humane” death penalty

The majority opinion was not signed, but the main argument remains that the lethal injection, specifically when using pentobarbital, satisfies the 8th Amendment threshold of not inflicting cruel or unusual treatment.  In what we can expect to be implied comparison to the former use of the electric chair or hanging, the Court is citing faceless statistics, in which the horror of executions is not even debated: the chemical had been “used to carry out over 100 executions without incident”, compared to the increased use of compounded medications leading to botched executions. Pentobarbital is used “by five of the small number of States that currently implement the death penalty” ; something that appears to be a positive note while a human rights compliant position would be to implement a moratorium.

Ultimately, the battle over whether pentobarbital is the saving grace of the constitutionality of the death penalty matters little. As Justice Breyer painstakingly detailed in his dissent in Glossip, the entire process of sentencing, death row, and execution protocols in themselves constitute cruel and unusual treatment. The method of killing is just one element of a chain of events that in themselves could be found unconstitutional, and would be if the standards applied to the 8th Amendment would be in full adherence to the CAT. Without ever pondering this aspect of the Court’s responsibility, which is that life or death still is a matter of enacting criminal justice, it seems to deflect. Citing Bucklew, “Last minute stays should be the extreme exception, not the norm”, leaving it to state courts – and gubernatorial pardons – to decide of the way justice is carried within their borders.

On that simple note, perhaps there is an element of agreement. The fear and anxiety triggered by a fast approaching scheduled execution, and life depending on one phone call from SCOTUS in the execution chamber constitutes cruel treatment. No detainee should depend on last-minute stays. Yet again, if the 8th Amendment was to be consistently applied, death row would not be such a prominent feature of the US criminal justice system. SCOTUS vacated the District Court’s injunction, precisely so the execution could proceed.

Thursday, Oct. 9, 2014 file photo

International human rights law fails to be consistent on the issue of capital punishment.  The ICCPR itself opens a narrow window before advocating for its closure in its article 6, limiting the use but stating “nothing (should) delay or prevent the abolition of capital punishment by any State Party”. The UN General Assembly, in a series of resolutions, demands the restriction, but not the end, of its use. If the general human rights discourse is to advocate for a universal moratorium, as demanded by the Secretary-General in 2019, nothing comes as close as to the 2009 report of the Special Rapporteur on torture, Manfred Novak, aligning capital punishment as a form of torture (para. 38-44).

However, it is exceedingly rare to find references to international human rights law and its corresponding standards in US judicial rulings and judgements; interpretation of the 8th Amendment belongs to SCOTUS,  and has consistently been held as having a high threshold.

II – the dissent opinions and the very nature of the 8th amendment

The original text, which is just one line, was added almost 200 years before the Convention Against Torture. It states, very simply,

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

Cruel and unusual punishment is not defined, and the definition of torture in the CAT has been severely amended to suit the US’ interpretation of it and maintain its condition of detention, its interrogation methods, and the capital punishment. In part II of the Senate’s reservations issued on October 27th, 1990, we find this human rights exceptionalism spelled out in unequivocal terms:

That with reference to Article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (…) (3) the threat of imminent death;

(…)

4) That the United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty.

It has been Justice Breyer’s position that the 8th Amendment did cover the Senate’s interpretation and therefore would follow that the death penalty should be reconsidered, a moratorium implemented, but certainly not reinstated after the human rights semi-victory that a federal ban had provided. Reiterating his position in Glossip, Justice Breyer mentions the duration of detention on death row and its infliction of psychological suffering, that can be only intentional and deliberate if delivered by a magistrate after a trial; in Lee v United States just days ago, the amended judgement involved that the execution of Mr. Lee “raises real concerns about the arbitrary application of the death penalty”.

Research from the Innocence Project and the Marshall Project have not only raised severe issues regarding the racial disparities in the application of the capital punishment, arising from the very moment – a crucial element of any criminal trial – of jury selection; but arguing the capital punishment is arbitrary places it, once again, directly within the sights of what Congress interpreted.

If those reservations have been denounced by human rights defenders, including myself, for having allowed rendition, abuse of solitary confinement, and high risk of death sentences, often leading to a mass refusal of extraditions of arrested individuals to the United States, those reservations hold a massive contradiction within the same chapter.

The dissent written by Justice Sotomayor, joined by Justices Ginsburg and Kagan, is denouncing a system of human rights apathy and deference within the Court:

“In doing so (refusing to the 8th Amendment challenge), the Court accepts the Government’s artificial claim of urgency to truncate ordinary procedures of judicial review.” The dissent continues on those grounds citing previous jurisprudence in which the Court took the time to account for scientific advances or discoveries, APA consensus, and the specific medical situation of detainees. However, this can only lead to one thing: methods to execute will continue to evolve, and states maintaining the death penalty will continue to masquerade this as a form of justice.

But the criticism of “accelerated decision making” is not shallow. Justice Sotomayor, while not wishing to join Justice Breyer (yet?) on arguing in favor of a moratorium, demands to be firm and to uphold judicial review. This is a literal matter of life and death. The urgency can be circumvented with a stay while the Court debates, and that is precisely the role it plays in the normal circuit of appeals and domestic remedies. A judicial review of capital punishment as a whole, and not just the use of certain chemicals in a particular state, is absolutely necessary. It remains egregious that, while there seems to be momentum for governors declaring an end to the death penalty (New Mexico and Colorado being the two most recent), it is reinstated at federal level.

The prohibition of torture must be extended fully, and unequivocally, in international law. An amendment to the ICCPR or the CAT would provide an avenue for the United States to reintroduce the debate in domestic fora.

David Lewis Lee was pronounced dead on Wednesday at 8:07am in Haute Terre, Indiana.

Towards a ban on rubber bullets

Minneapolis photo journalist george floyd protests rubber bullets

Minneapolis, MN. CHANDAN KHANNA/AFP via Getty Images

While covering the protests in memory of George Floyd in Minneapolis, journalist Linda Tirado was hit by a rubber bullet. Despite donning goggles – an increasingly common practice to protect protesters from the use of tear gas and pepper spray, two other forms of LLWs – those slid from her face until something hit her. She told the New York Times, “I immediately felt blood and was screaming, I’m press! I’m press!”. Protesters carried her out, and she was operated on within the hour. The rubber bullet that hit her damaged the vision in her left eye beyond recovery. She testified before Congress shortly after, on the violence against journalists during protests. While less-lethal weapons (LLWs) are not prohibited under international human rights law, their use has long been debated and demands compliance with the principles of necessity and proportionality. As both are routinely violated, due to local and national interpretation of what constitutes both necessity and proportionality, in addition to the discretion granted to law enforcement officers in the pursuit of their duties, the United Nations’ Officer of the High Commissioner for Human Rights (OHCHR) released a guidance in 2020 that framed their use. This guidance has proven either ignored or too vague in a matter of months. The history of rubber bullets in crowd control is not new; from Northern Ireland to the United States, this aims at initiating a conversation that will hopefully lead to a ban on the use of rubber bullets as a dispersion method, arguing it could easily cross the threshold of cruel and indiscriminate treatment.

What’s a rubber bullet?

The rubber bullet is part of kinetic impact projectiles (KIPs) and can be made of rubber or plastic. Their role as less-lethal weapons – and not non-lethal weapons, as has been seen in various media outlets – is principally as a dispersion method during a riot or a violent assembly. The British Army developed wooden, plastic, polyvinyl chloride (PVC) then rubber bullets for use in Northern Ireland. They are solid and can be spherical or cylindrical projectiles of various sizes. Some are made of a composite that includes metal. They are to be differentiated from pellet rounds, which are closer to an actual bullet, as cartridges made from lead (or plastic, or rubber) pellet that spread when fired. Their goal is to cause physical harm, inflict pain and incapacitate an individual, without causing the degree of pain that would become a violation of the prohibition of torture. It is unclear where the threshold on the infliction of pain would lie if the projectile is fired from too close a range or is hitting a part of the body that is susceptible to be severely damaged. Firing into a crowd makes it impossible to reach those standards.

Washington, DC. Photo: REUTERS / Jonathan Ernst

UN guidance

The UN guidance aims at providing a comprehensive human rights understanding of the role of policing, in a balance between upholding law and order and minimizing risks to the human body. It acknowledges the necessity for law enforcement to be equipped with some sort of weaponry, but not necessarily use of lethal force, thus the category of less-lethal weapons”. The distinction to be made between the designated term and the colloquial mistake of referring to them as “non lethal” is a recognition that misuse could cause injury and death. The very preamble to the guidance, which is not targeted at individual officers or single police departments, but instead provides guidelines for states, traces the history of this equipment:

extrajudicial killings and acts of torture or other forms of cruel, inhuman, or degrading treatment or punishment—serious violations of international law —have been perpetrated using less-lethal weapons and certain forms of related equipment.

Recognizing the failures of the 1990 Basic Principles to abide by human rights law standards, especially in the training of police officers and in the risk assessment posed by those weapons, was at the origin of those guidelines. Minimizing risk should always take into consideration that refraining from using the weapon is at times the only way to avoid the risk altogether. Paragraph 2.3 states that

Any use of force by law enforcement officials shall comply with the principles of legality, precaution, necessity, proportionality, non-discrimination, and accountability.

As we can see through the use of qualified immunity in the United States but elsewhere, accountability is few and far-between and precaution is often discarded to the benefit of an assessment of necessity that is left to the discretion of the officer. In a tense climate in which protesters are presented as the enemy, a threat to the state, and triggering a politicization of conflict language, necessity seems to trump legality, proportionality, and much too frequently, the principle of non-discrimination, leading to the significant number of injuries that are reported. While the issue of accountability deserves its own article, it is worth noting that the United Nations Department of Peacekeeping Operations has prohibited the use of rubber bullets by UN personnel, precisely because of the risks of serious injury or even death due to improper use. The “circumstances of potentially unlawful use”, meaning the cases in which the use of the LLWs place individuals at risk of death or serious injury, which can constitute torture, are supposed to be avoided by acquiring weapons that have been tested to operate at their minimal capacity, and be subjected to thorough training in their use. Each police department operates on a different basis and it is extremely rare to see the use of human rights language and standards in law enforcement training, especially in states that seldom recognize the supranational nature of international legal standards.

Minneapolis Police Death Los Angeles

Los Angeles, CA. .(Ringo H.W. Chiu/AP)

The guidance is firm in its belief that law enforcement has a legitimate purpose; one that encompasses the facilitation of peaceful assembly. Increasingly, states have empowered their police departments with counter-terrorism powers and military equipment through legislation that saw any assembly demanding political change as a potential insurgency, as opposed to the freedom of expression; has used those weapons against members of the press, in violation of the freedom of information; and against legal observers, in violation of the protection of human rights defenders. Assemblies, some of which have the potential to become a significant, historical civil rights movement have received the support of the High Commissioner, 66 Special Rapporteurs, and have been the subject of an urgent debate during the 43rd session of the Human Rights Council. If the guidance is to be followed, its definition of undue risk – a level of identifiable risk that is unacceptable – can’t be compatible with the use of KIPs and especially not rubber bullets. The case of Northern Ireland is a direct example.

Northern Ireland

Francis Rowntree was an 11 year old student at St Finian’s Primary School in the Falls Road area of Belfast, when he was shot in the head with a rubber bullet on 20 April 1972. He was the first person to be killed by a rubber bullet during “The Troubles”; 16 more would follow, between 1972 and 1989. Eight of them were children. The young Rowntree died two days later of his injuries, which included skull fractures and lacerations of the brain. An inquiry into the killing was first launched in 2010, and the defendant, Soldier B., claimed he had no memory of having killed Francis Rowntree. The context was given that “a group of people were rioting and throwing stones at soldiers”, and it could not be established at the time whether Rowntree was in fact targeted or a victim of a richocheting bullet. After the inquiry took place and statements from the Coroner indicated excessive use of force, the family sued the Ministry of Defence – and Soldier B.’s statement sound much too familiar:

Virtually everybody you see were the target (…) The fact we are being pelted by just about every kind of missile, you are not really looking round to see if this person is innocent. I did not see a distinction.

Furthermore, statements from the Coroner, Brian Sherrard, include that there was no available training on the use of such weapons available to patrolling troops in the area:

The state provided Soldier B with a lethal weapon without notifying him of its potential lethality or training him in its use. (…) The absence of adequate training made it impossible for Soldier B to assess whether to use lethal force. (…) He fired without warning into the crowd, which was not aimed at any individual.

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Francis Rowntree

The context of the use of LLWs in Northern Ireland matters. In a recent article written by Martin O’Flaherty, a parallel is drawn between the police force active in Northern Ireland at the time, the Royal Ulster Constabulary (RUC) and the militarized police departments active in the United States. While there is much to be learned about the non-negotiable demand to disband the RUC and build a new police force with inherent accountability mechanisms during the peace process, Northern Ireland was, at the time, under counter-insurgency and saw the deployment of armed troops, counter-terrorism unit, military intelligence, and covert counter-insurgency units, all of which were equipped with lethal weapons and granted powers that far exceed regular law enforcement. However, the use of rubber bullets here is still framed by international human rights law, and subjected to the same criteria of necessity and proportion; they were still fired in those cases as a means to disperse a crowd argued to engage in unlawful or threatening behavior.

And they still claimed lives.

While Northern Ireland painstakingly continues the difficult work to litigate unlawful killings from the conflict, the use of LLWs authorized by the British government by all its parties to the conflict on the ground – from the RUC to British armed forces – occurred with a vast array of injuries, if not deaths. The non-governmental organization Relatives for Justice, based in Derry and founded by families of victims, has long been an advocate to ban the use of rubber bullets as a display of excessive force. In a statement released in January 2007, responding to then Chief Constable Hugh Orde requesting the end of the use of rubber bullets for the purpose of public order or crowd control, the organization affirmed its position:

It is evident from the Chief Constable’s statement that the Plastic Bullet remains a lethal weapon in the armoury of the PSNI and the British Army. As a lethal weapon with devastating consequences plastic bullets, or any lethal replacement such as Tasers, are completely unacceptable and constitute a breach of international human rights standards. The most vulnerable in our society continue to be most at risk from these weapons – especially children. It is highly regrettable that the Chief Constable did not take this opportunity to completely end the use of the plastic bullet.

Based on painful existing experience, the former chief of the PSNI saw fit to end the use of plastic or rubber bullets, the risk of permanent injury or death when fired into a crowd – rendering it difficult to target a specific individual and to avoid certain parts of the body, as requested from the UN guidance – being too great. If there is no possibility for the use of force to be proportionate, it follows that it would be unlawful to use this weapon, especially when discharged against civilians, regardless of the lawfulness of the action in which they are engaged.

 

Opinion from P4HR

The US-based non-profit organization Physicians for Human Rights (P4HR) released a fact sheet on KIPs that would recommend a ban, due to blunt or penetrative trauma. While we’ve seen that the UN guidance recommends avoiding the head and torso, it is also nearly impossible to make that distinction in an order of dispersion and aiming at a crowd, especially if the police or armed forced are retreating due to action from the crowd. Aside from the injuries caused to the eyes and head, that have been documented, attention is drawn to musculoskeletal injuries, such as sprains, bruises, and fractures; KIPs can also cause “permanent damage to neurovascular structures”, leading to compartment syndrome. On skin and soft tissue, “superficial and deep lacerations may cause muscle and nerve damage as well as bleeding”. The numbers are staggering: research conducted by the organization over the past 25 years identifies 1925 individuals suffering injuries including 53 deaths and 294 permanent disabilities. 49% of those deaths resulted from direct strikes to the head, prohibited in the UN guidance, and 23% from blunt injury to the brain, spine, or chest, once again prohibited in IHRL recommendations but either not enforced due to lack of training or impossible to implement due to the situation in which they are use. 84% of injuries to the eyes resulted in permanent vision loss. In total, 70% of individuals struck by rubber bullets had severe injuries that required immediate medical assistance, that makes rubber bullets, for the sake of rhetoric, less lethal, but with a potential for morbidity and mortality that far exceeds what we expect law enforcement to be using against civilians in cases of unrest during peacetime.

Law enforcement officers wearing riot gear shoot rubber bullets in the direction of demonstrators outside of the White House on June 1 in Washington D.C., during a protest over the death of George Floyd.

Washington, DC. JOSE LUIS MAGANA/AFP VIA GETTY IMAGES)

Their 2016 report, Lethal in Disguise: The Health Consequences of Crowd-Control Weapons, released in conjunction with the International Network of Civil Liberties Organisations (INCLO), concluded unequivocally that KIPs are not incompatible with the human rights standards for crowd management and rubber-coated metal bullets specifically posed too much of a risk  to be allowed to be used. Even alternatives to rubber bullets and pellets – like “sponge rounds”, that have a much lesser degree of penetration into the skin – must be used extremely sparingly. The diversity in KIPs, such as “bean bag rounds” and pellets, are inherently meant to create an injury significant enough to incapacitate individuals, and not for a short amount of time. The dispersion and the fear that can be caused by the firing of those weapons can also create a stampede that would be extremely dangerous for injured people who can’t move, are bleeding, and need to be removed from the crowd in ordered to receive medical attention.

 

IHRL going forward

Enforcing protections and safeguards against the violation of the prohibition of torture is one of the biggest challenging in international human rights law. Reservations to the very definition of torture and the threshold of cruel treatment differs much too often from what should be a universal standard. If we are to have a conversation on the role of law enforcement in open, democratic societies upholding the rule of law, as is currently the case, we must engage in the complex and painful work of examining whether law enforcement is indeed a protection of civilians, in which officers are tasked with the right of safety and the right to security, or if they are an instrument of state power under increased human rights restrictions. The encroachment of counter-terrorism on legitimate law enforcement activities has dug deep trenches between a population seeking change and addressing their representatives the way they are entitled, and a police force armed to the teeth using weapons that have the potential to permanently maim and kill. The fear that this causes especially when used against individuals due to bias – another human rights violation against ethnic minorities, LGBTQIA individuals, and human rights defenders – demand a much broader conversation on legitimacy of policing. The UN guidance, because it isn’t legally binding, and is subjected to the definitions that states uphold of necessity, proportionality, and precaution, is not sufficient and has not addressed the danger those weapons could pose in a climate of intense tension.

De-escalation requires minimizing police equipment; redirect the funding toward social justice programs and not the acquisition of more weaponry; and focus on training, sensibility to human and civil rights, and replacing law enforcement where it belongs, which is protection, not attack. A ban on rubber bullets could be a considerable advancement at a time when confrontation with police leads to injuries and death, even when those encounters were not meant to be violent. If we want to address police violence, we must address what enables this violence: theoretically with policy, and practically with powers.

Dear Governor Cuomo

The Honorable Andrew M. Cuomo
Governor of New York State
NYS State Capitol Building
Albany, NY 12224
Monday, the 8 th of June 2020

Governor,

I am writing to you today in response to the proposed legislation you have announced over social media and in a televised briefing. As the bill will be presented to representatives this week, and on the heels of mass protests in the city of New York, I am taking this opportunity to highlight the human rights obligation pending upon the United States as a country. While federal authorities do not appear to support gubernatorial efforts for reform, I believe your efforts should be highlighted and perhaps used as an example nationwide, should they be inspired by police reform in the state of New York.

The Faces of the New York City Protests

Photo: Lexie Moreland

While the United States has ratified a number of core human rights treaties, such as the
International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT), the US Congress at time of ratification issued a number of reservations, some of them deemed significant enough to undermine the purpose of treaty integration as a whole. I however welcome efforts that have been made by your office under your tenure concerning core criminal justice issues including: bail reform, reduction of the use of solitary confinement after litigation from the NYC branch of the ACLU, and community re-integration. This is why I believe that the “Say Their Name”
reform has considerable potential. My letter aims at encouraging the use of human rights law language in United States legislation. Much too often human rights arguments fail to find their audience in courtrooms and in legislation; it thus matters that citizens and residents alike are acquainted with international human rights norms, to end this long standing state of exceptionalism. Guidance exists at international level to support and ground the following efforts:
– Transparency (ending 50-A)
– Banning chokeholds
– Prohibit racially biased 911 calls
– Empowering the Attorney General to open independent investigations into police killings
In addition to the decision made by Mayor Bill deBlasio yesterday on defunding the New York City Police Department (NYPD), I believe those demands are answering many of those present during the eleven days of protests across the city and nationwide. It is also aligning with a recent letter published by Legal Aid NYC on access to records for legal representation during pre-arraignment detention. I would like to draw your attention to discrepancy between contemporary international human rights law norms and police practice, as well as the gaps between effective and efficient criminal justice and real, reliable and trustworthy accountability.

I – Use of less-lethal weapons (LLW) and the police
Following the protests in Hong Kong, France, Spain, and the United States, the Office of the High Commissioner in Geneva released a full guidance on the use of less-lethal weapons by law enforcement worldwide. The goal is to reiterate the importance of the criteria of necessity and proportionality. While international law recognizes the use of law enforcement weapons, international bodies have expressed pressing and increasing concerns with regards to the use of police as a deterrent to the peaceful and lawful exercise of the human right of assembly and expression. While we understand that the safety of all is paramount, righteous expression against injustice is a necessary and welcome indication of an informed and mobilized citizenry seeking to improve the well-being of their communities. It is unacceptable that such movements face the repression they have seen, not just in 2020, but in previous years since the beginning of the Civil Rights Movement. The deployment of police forces by Mayors should be curtailed by human rights norms, and this includes the diminution, if not disappearance, of less-lethal weapons.

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I am sure you have read UN expert on extrajudicial execution, Agnes Callamard’s opinion piece in the Washington Post in which she explains that such weapons and agents can be abused if improperly used. I believe this requires further training on the part of police forces. A few elements emerge from the reading of the United Nations guidance that have been ignored by the NYPD, repeatedly, and without any form of accountability thus far:
The use of less lethal weapons as a deterrent: it is recommended that such use – like
water cannons and tear gas – be only used to disperse a crowd after assessing a risk. It is
crucial to maintain that even an illegal assembly still benefits from human rights
protection and dispersion does not have to include the use of less-lethal weapons. They
must not be used to deter civilians from exercising their rights, and all of them are
conditioned to the issuance of a warning, with a delay for participants to safely
disband without being attacked. Sadly we have witnessed too many instances of injuries
related to their use.
– Less-lethal weapons can’t be used at close range. It seems that the use of chemical
irritants has not been tested and assessed as recommended the guidance. The irritant must also contain the lowest possible percentage of irritant. Again, this is a civilian situation in a civilian area, and the use of LLWs can be indiscriminate and endanger bystanders if not used appropriately. Even weapons including the dispensation of electroshock must not be used for the purpose of inflicting pain or causing injury, which can amount to cruel and degrading treatment in an arrest or detention. The risk and the threat posed by a specific individual has to be a common rule.
– The use of rubber-coated metal bullets or metal pellets should be banned. While the UN
guidance does not expressly prohibit them, they do not fall under the “less lethal”
category. There are several instances of rubber bullets having killed or severely
maimed an individual, while the use of this specific type of ammunition as opposed to
traditional rounds was meant to avoid wrongful deaths. The power of dissuasion that is granted to law enforcement does not match with its presence as an intimidating force. UN experts have clearly expressed that ethnic minorities were “living in fear” in the United States. In New York State and elsewhere, the use of rubber bullets can be extremely damaging and cost civilians limbs and sometimes life. It should not be used, referring to the principle of precaution and relying on previous damaging precedent.
– Training on the use of batons and light devices: reports have indicated injuries on
protesters that were consistent with the use of blunt objects to the head. The
aforementioned UN guidance strictly prohibits the use of batons to the head, neck, and
abdomen, due to the risk of severe injuries. Communities have had to develop and
spread the use of “street medics” in order to tend to those injuries that should not even
occur. Even if batons are not spiked, they can cause significant damage that will be found to be disproportionate under human rights law, and can lead to concussion, damaged scalp, excessive bleeding, musculoskeletal injuries or organ damage.

At this juncture in several movements and mounting wrongful killings committed by NYPD officers, instructing the office of the Mayor of New York City to order a new training of NYPD officers as well as a new patrol guide – that also authorises the use of firearms for off duty personnel! – seems salient. The increased militarization of law enforcement across the United States following the tragic events of September 11, 2001 must be entirely distinguished from the regular maintenance of law and order by city forces during exercises of a human right.

nypd-blm-protests

Image: Vanity Fair

II – Independent, impartial and effective investigations into police killings
Of course, the United States is in no way legally bound to unratified international treaties or those with restricted territorial jurisdiction. They can however provide excellent templates for further integration of human rights norms. The European Convention on Human Rights (ECHR) is an excellent point of reference; its Article 2, referring to the right to life, also requires the right to an effective investigation. Following the police killing of Brazilian citizen Jean-Charles de Menezes in the United Kingdom, scholars were divided as to what the conclusion of the investigation provided. However,
Article 2 should be a stepping point for the idea you put forward about independent investigations:

Deprivation of life shall not be regarded as inflicted in contravention of this Article
when it results from the use of force which is no more than absolutely necessary a) in defence of any person from unlawful violence…

According to Dr. Ian Turner, a professor of law at the University of Lancaster who has written extensively into the tense and sometimes confrontational space between law enforcement and human rights law, interpreted this as follows:

Article 2(2) therefore prohibits intentional killings by the state unless the force used is strictly proportionate to a legitimate aim like preventing unlawful violence. The degree of force exercised must remain “absolutely necessary” even in times of war or public emergency as per Article 15(2) of the ECHR. Article 2 is not only interpreted as conferring a negative right upon an individual – that is, a right not to be arbitrarily killed by the state – it also possesses a positive sense. (…) This positive duty imposes a corresponding secondary obligation on the state: a procedural or investigative duty to examine how and why a person died, and if necessary, to hold those responsible to account, sometimes through criminal charges. (…) consider only two obligations imposed on the UK by Article 2: the positive duty to protect life as per Article 2(1) and the duty not to intentionally kill someone unless using force that was absolutely necessary and for a legitimate objective as per Article 2(2).

It is a welcome development that the Office of the Attorney General for the State of New York has launched a dedicated investigation into the conduct of the NYPD during those protests, and that your proposed legislation seeks to enhance its role in a follow up to your Executive Order No. 147 signed in June 2015, creating the Special Investigations and Prosecutions Unit (SIPU). If understood correctly, your new legislation will empower the Attorney General to launch independent investigations into police killings, which it appears the SIPU can already perform, also releasing biennal reports. I humbly suggest that, in addition to the powers already granted to the Attorney General, an independent and impartial body that is not related to state governance be tasked with investigating police killings as well as serious injuries, complementing the existing Commission for Human Rights present in the city and looking into hate crimes. Funded by the state, it would however not be bound by other concerns than that of transparency and accountability demanded by residents. It seems that the use of Grand Juries as opposed to SIPU or recommended by SIPU did not lead to the degree of accountability required by the residents of New York State.

The issue of professional discretion is one that has complicated court cases against or involving law enforcement worldwide. All officers are empowered with making a decision on the threat posed by an individual or a group, and much too often this threat is either inflated, or poorly assessed, leading to wrongful arrest and detention. Adding to this a political context in which the very fact of political action has been vilified, if not criminalized by the creation of new misdemeanor charges, and police departments may operate under the assumption that an otherwise lawful action may be deemed illegal, due to poor interpretation, gaps in guidance and lack of transparency. I would like to bring to your attention Mayor DeBlasio creating a new charge, to the level of a class B misdemeanor, for failure to comply under a curfew. This curfew has been widely discredited for specifically targeting protesters assembling at the end of a work or school day; at the time when it was possible for them to have a significant movement, a curfew empowered the NYPD to extend arrests and charges, creating an even more dangerous backlog.

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In addition to this charge, that the Mayor has dropped under pressure, the decision issued by New York County Supreme Court Judge James Burke on June 4th is more than concerning. Denying an emergency writ filed by the Legal Aid Society on behalf of then 108 individuals in NYC, this suspension of habeas corpus can’t be understood as a “technical difficulty”. Mass arrests due to the use of kettling should not have occurred in the first place; I can only emphasize that methods of coercive police not be applied indiscriminately. At the time most press covered the decision, 131 were held, and hundreds more were arrested that same night after a protest in The Bronx. According
to Russell Novack, an attorney for the Legal Aid Society, “the police department has a history of deliberately delaying people’s arraignments because they don’t like what they’re doing on the street”. This is illustrative of a systemic issue that merits not just one investigation, but an overhaul of police practices in compliance with the ICCPR. The proposed legislation should empower an independent body – not to strain the resources of the Attorney General’s office – to investigate why individuals are detained for a summons. This is especially salient as the pandemic has not yet abated and continues, with calls issued worldwide to release prisoners in pre-trial detention or in low-level
offences in order to mitigate the spread of the virus in facilities were social distancing is not available. This could amount to deliberate exposure to the virus, meaning a violation of the right to safety, for which the state is liable.
Initially welcoming District Attorney Cy Vance’s decision not to prosecute for misdemeanor charges, it remains that the police department has continued arrests and kept individuals in custody despite the likelihood of arraignment seeing no valuable reason for bail or for trial. According to Tina Luongo, a chief attorney for criminal defense at the Legal Aid Society, “we’re still getting bail requested on people who are not a flight risk charged with misdemeanors and nonviolent felonies. The entire
nation is talking about not setting bail for these groups of people, but somehow (Vance) can’t inspire or motivate his staff to do it (…) (Vance does) not recognize that they are running almost two separate shops of prosecution – one for people with access and influence and one for poor people. ” In addition to that, there is a need – and a nationwide cry – for criminal prosecution of NYPD officers that have committed violent arrests against those same people held for days at precincts, issues and
crimes that will not see the light of a courtroom. There is a demand for a criminal justice system that underlines the judicial element of it. To restore trust in the courts, judges may not create states of exemption from constitutional rights and not operate under the assumption that the independent branch of government has a duty to cooperate. Following the ICCPR,

3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.

US representative Justin Amash has introduced bipartisan legislation on that same day, June 4, to end qualified immunity for police officers. The Ending Qualified Immunity Act, if passed by Congress, would signal tremendous change following the lack of successful prosecution and sentencing of wrongful killings committed by police officers. I strongly suggest that this bill be supported in NYS legislature.

III – Defunding the police

Across the world, reliance on community policing, support for low-income communities, re-insertion of detainees, support for education programs, and other social justice efforts have led to a decrease in criminality. A population seeing its police force as a threat and a form of state oppression as opposed to protection means the police have lost legitimacy as its representation of the state. The disproportionate influence of police unions and the insistence on the part of the Mayor to support the NYPD despite mounting claims of illegal activity has contributed to sustained protests that must be heard politically and supported civically. From operating as patrolling to determining the individual is de facto an enemy to control, the history of law enforcement in the United States has
been raised several times by human rights bodies, including the Committee on the Enforcement of Racial Discrimination (CERD), which last heard the US delegation in the summer of 2014, during the last wave of Black Lives Matter protests.
In paragraph 17 of its concluding observations transmitted to the government of the United States in September 2014, the committee declared:

While recognizing the efforts made by the State party to intensify the enforcement ofrelevant laws, the Committee reiterates its previous concern at the brutality and excessive use of force by law enforcement officials against members of racial and ethnic minorities, including against unarmed individuals, which has a disparate impact on African Americans and undocumented migrants crossing the United States–Mexico border (para. 25). It also remains concerned that, despite the measures taken by the State party to prosecute law enforcement officials for criminal misconduct, impunity for abuses, in particular those committed by the Customs and Border Protection (CBP) against Hispanic/Latino Americans and undocumented migrants, remains a widespread problem (arts. 5 (b) and 6).

It then recommended the following:

The Committee urges the State party to:
(a) Ensure that each allegation of excessive use of force by law enforcement officials is promptly and effectively investigated; that the alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions; that investigations are re-opened when new evidence becomes available; and that victims or their families are provided with adequate compensation;
(b) Intensify its efforts to prevent the excessive use of force by law enforcement officials by ensuring compliance with the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, and ensure that the new CBP directive on the use of force is applied and enforced in practice;
(c) Improve the reporting of cases involving the excessive use of force and strengthen oversight of, and accountability for, inappropriate use of force;
(d) Provide, in its next periodic report, detailed information concerning investigations undertaken into allegations of excessive use of force by law enforcement officials, including the CBP, as well as their outcomes, including disciplinary or prosecutorial action taken against the perpetrator and remedies provided to victims or their families.

It is abundantly clear that those measures were not taken into account. An excellent piece written by legal scholar Yusra Suedi outlines ways through which the United States could be made to enforce those committee recommendations.  As the United States will be reviewed by the UNCERD once more in the two years to come, it is blatant that advancement must be made through a review of police training. A former policeman and visiting professor of sociology at Emmanuel College, Tom Nolan wrote about the militarization of police forces in the United States since 2001 as a departure from de-escalation, compromise, negotiation and conflict resolution:

Much of this was aided by the federal government, through the Defense Logistics Agency’s 1033 Program, which allows the transfer of military equipment to local law enforcement agencies, and the Homeland Security Grant Program, which gives police departments funding to buy military-grade weapons and vehicles. Critics of this process have suggested that the message sent to police through equipping them with military equipment is that they are in fact at war. This to me implies that there needs to be an “enemy.” In cities and, increasingly, suburban and rural areas, the enemy is often those “others” who are perceived to be criminally inclined.

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Currently, the NYC budget for the NYPD stands at a staggering $6 billion, despite letters from the staffers of the Office of the Mayor to cut it by at least $1 billion. Mayor deBlasio has only yesterday accepted to diminish the police budget. The deadline for the 2021 looming, City Council cuts by $2 billion affected education, housing, parks, health and social services – all of which have a considerable part to play in making communities safer, more tied to each other, and allowing NYC residents to contribute to the best of their ability as well as being protected from eviction, lack of access to health care, especially in the wake of the way the Covid-19 pandemic has affected the city.
Meanwhile, New York City Schools Chancellor Richard Carranza stated that the “cuts are of a shocking magnitude”. The city coffers being depleted due to the pandemic by $111 million, the cuts affect professional development spending, hiring freezes, pre-k programs, fair student funding formula and other funding streams. Without federal assistance, the city will not be able to afford education at 2020 level, which was already dire given the needs of students and their dependence on the public school system for after school programs, civics, and lunches.
The presence of police officers in schools has also had a traumatic effect for young children who grow accustomed to seeing uniformed personnel in areas where they should feel safe to learn, live, grow and interact; the school-to-prison pipeline has reinforced this “us vs them” mentality that has pervaded the country and fuels resentment against law enforcement. It is not necessarily radical to demand better contribution for New Yorkers that do not involve violence or coercion, but rather a holistic, inclusive, safe and community-led approach to both budgeting and policing. Many teachers protested to have funding not just for special programs, but for their basic equipment as well, that many pay for out of pocket for lack of budgeting for education. It is inconceivable that a state would not invest in its youth and youth workers while complaining about the rise in violence, homelessness and unemployment, without seeing the link between the two issues. The NYPD is already outfitted
with a Counter-Terrorism Unit (CTU) present at protests or rallies, no matter how peaceful, an abuse of counter-terrorism powers that has been noticed as a worldwide trend as authoritarianism was on the rise. In total, the Department of Education (DoE) will face $264 million in budget cuts due to the pandemic – and $1.3 billion across the board, including public safety, transportation, sanitation, health and social services.

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Those $1.3 billion and more that are necessary to keep the city running and New York City safe as well as ensuring that the state meets their constitutional, civil and human rights obligations to provide for its residents can be found in the proposed budget for the NYPD. The equipment necessary for a police force that seems to operate under constant wartime or under a perceived and completely manufactured state of insurgency is costly, and entirely unnecessary. The United States is not at war against its own people; the state of New York does not have to see its residents as insurgents. The right to protest is well-covered, and if the United States is one of a small handful of countries worldwide to have accessed less than ten human rights treaties, it does not mean that it should fall short of its obligations under those it has chosen to ratify.
I believe that the state of New York and New York City as a whole deserves more, and is entitled to claim it when the city and the state are failing New Yorkers. After six months of suffering under the coronavirus, of trying to sustain itself and survive in dire economic and social times, the city, long the biggest contributor to federal funds and a haven for fundamental American values, needs to lead the way into emphasizing, highlighting and using human rights language, normalizing it so it becomes a
tool for progressive, peaceful, structural and long-lasting change. All the tools are already at its disposal. All that is missing is the political will to do so.

As you prepare to introduce reformist legislation, I hope you can take these recommendations into account and further your involvement into human rights bodies that are, after all, based (in extraterritorial domain, but still) in your state; the best law clinics; committed activists, community leaders, and New Yorkers. We hope to see change and I believe we should continue pushing for it for the development of a nation that is leaving so many behind.

With gratitude and hope,

 

Why Elon Musk is not the new ACLU

I can’t begin to stress the effects a pandemic and its subsequent quarantine can have on the human psyche, especially when the presupposed and self-appointed guardians of the collective intellect, say, the Wall Street Journal editorial board, come up with such headlines. It has been hours of disbelief. Understand: there are much important legal issues at hands, like the surge of the conflict in Afghanistan reaching horrific heights, or the human rights issues posed by health emergencies worldwide.

And yet, we are now bestowed with Elon Musk, of all people, to be the guardian of the United States’ leading civil rights organization. I have previously expressed some discrepancies in opinion with the ACLU, regarding their stance on free speech and their tenacity in litigating abortion bans. Those were legal debates worth being had (or at least, so I believe) and which continuity can only benefit the civil and human rights legal community. Deciding to appoint a somewhat brusque, politically unfit, and erratic billionaire at the helm of one of the only institutions not destroyed by the Trump administration is completely irresponsible. It’s also probably extremely symptomatic of the times we are living in.

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The argument was that Elon Musk believes in governmental scrutiny, which is such a low standard for any citizen that planting them as the new figurehead for civil rights is not a stretch, it’s a quantum leap. It is entirely based on the survival of TESLA’s capitalist structure, as explained:

That Elon Musk’s resistance of California’s pandemic shutdown may well be due to fear that his company cannot survive if it doesn’t continue pulling in cash from delivering cars merely gives him material and compelling justification for his defiance. He should protect his company’s right to do business and survive against what he considers unlawful and unjustified prohibitions. He would be derelict not to do so.

There is so much to unpack from this single paragraph, but the use of the term “unlawful” has triggered many lawyers before this one, and as we are all struggling to balance positive and negative legal obligations resting upon states from both international and domestic legislation. The fact that Elon Musk just refuses to abide by public health regulation is reactionary at best, dangerous at most. Using the term “derelict” is uncalled for: Elon Musk has duties toward his employees and toward his trustees; that is correct. One of those duties is the right to safety. Granted, the ACLU did state from the very beginning of both state and federal regulation – which, in the United States, wasn’t that long ago compared to the effective danger posed by the pandemic– that they would scrutinize measures enacted in order to confine, restrict, and protect so they would not exceed legal boundaries; it was their mere statement of purpose. We have all been called upon our legal duty to review measures, especially when those veered into the arena of emergency, in order to ensure human rights protection.

But here’s the thing about public health. It’s also a human right. Before calling the state of California’s measures “unlawful”, a judicial review should be conducted, and this is not what this article, once again published by a member of the editorial board, has performed. Expertise be damned, the article now takes a scientific turn: something that is required given the circumstances; I myself have called for deeper interdisciplinary output in order to provide guidance that would be both lawful and safe.  But the Wall Street Journal continues in what is frankly baffling and has been denounced left, right, and center:

A writer in the Atlantic suggests conservatives favor opening the economy and want the old and ill to take one for the team. My own email indicates dissent from the lockdowns has nothing to do with being a conservative and a lot to do with being a physician or immunologist. By focusing protection on the elderly and vulnerable, we bring closer the day when the elderly and vulnerable won’t need protecting because the epidemic has run out of a critical mass of people to infect. An unusually sensible (sic) writer in the New York Times points out that pandemics in the past have ended not with the virus going away – the 1918, 1957 and 1968 strains are still with us. They ended when people decided to accept and adapt to the virus’ existence.

None of this is backed up by the aforementioned physicians or immunologists, let alone those with experience dealing with pandemics. If the author wants to ensure that there is no risk of those claims being ideological and instead base his argument on the logic of human management of natural events, he would do best to take a look at how those events were managed in order to mitigate and respect the rights that had been enacted after 1918, as opposed to claiming that “live and let die” was a perfectly acceptable motto.

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There are, of course, issues with regulations that have been enacted in response to the pandemic, to the point that the Office of the High Commissioner for Human Rights (OHCHR) has dedicated specific research and pages to monitoring the situation, from states of emergency to restriction on movement, suspension of asylum rights, exercise of statutory police powers, the status of the incarcerated, domestic violence, and access to health in non-covid related areas. There are plenty more, but the author of that piece is not concerned with the damage that this virus has caused globally – the loss of lives, the loss of certain freedoms, the loss of an idea of a normalcy that was never truly one in the first place – he is concerned with TESLA’s bottom line. Let me be clear: TESLA is not a small business in New York City. Its survival is not really questioned. Its role in the community is minimal. It should not be on the list of priorities for an eventual bailout from the state governor or federal authorities to ensure that the loss of income from what can only be described as an act of god. The idea that private funds – billionaires, bar Warren Buffet perhaps, are not the saviors some seem to believe they are – are more important than human lives is not just horrific, it’s cynicism that can only be derived from an ideology based on a dark version of Darwinism.

We have a duty to protect the vulnerable. But the vulnerable are not necessarily those the author thinks about. Yes, there are individuals with underlying conditions that would make an infection by this virus, or any other, seriously at risk, but the virus has also affected people without said conditions, and has led them to the ICU. There is still no consensus as to whether having contracted the disease means one is immune to a potential re-exposure. The reason why those strains are still with us but have been downgraded in the severity of their status by the World Health Organisation (WHO) is the existence of vaccines.  Because the right to health is a human right.

Yesterday, doing a webinar organized by the Human Rights Lawyers Association (HRLA), based in London, several human rights issues were raised by the panelists, including over-policing, the situation of overcrowding and impossibility of social distancing in prisons and immigration detention, as well as the privacy issues surrounding contact-tracing. All of this is within the purview of the ACLU. All of this needs to be monitored, for two reasons, on which the delicate element of assessment of lawfulness rests:

  • The right to health, safety, security, and life, as well as the prohibition of cruel and unusual treatment that can be raised if states do not take measures to protect individuals from contamination and, in the case it has not been made aware – that can only be assessed in hindsight – of any contamination, regulated in order to mitigate. Michael Etienne, a barrister at No 5 Chambers in London, was examining possible violations of Article 2 and Article 3 ECHR in England with regards to the issues of care homes and other facilities in which individuals are under the care of the state and were not provided with enough equipment. That can be extended to any essential worker that has been knowingly exposed to the virus;
  • The right to freedom of movement, the right to work, and the right to family life, as well as the right to privacy in implementing contact tracing, a standard operating procedure in the management of pandemics, so as to remove third party use of health data and its storage post pandemic, or for government use that is a digression from the purpose of maintaining public health.

We are talking about public health. And if the author believes that the Spanish influenza or, for that matter, the black plague was just a perfectly acceptable way to thin the herd and only those with antibodies that miraculously managed to survive what decimated empires deserve to remain citizens of the United States, home of the free and land of the brave, I would suggest he tries that speech with any and all of his loved ones, who are at just as much risk. I am comparing this piece with the fresh mass graves dug in my city of New York and I find the disregard for livelihoods and the detachment from empathy in situations of grave danger, that none could have foreseen, with the same form of horror I would an active shooter in a schoolyard.

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The author concludes,

That politicians took steps out of panic is understandable.

It is not.

That these steps were unjustified by the science that existed then much less now doesn’t mean their motives were bad.

The steps were usually guided by the 2005 International Health Regulations.

We can accept, especially in a panic, that the media will eschew complexity in favor of a story of an enemy that must be vanquished.

As much as I want to fight that the belligerent rhetoric that has been pushed, no less by French president Emmanuel Macron stating “we are at war” six times in a twenty-two minutes address announcing the national lockdown, needs to be addressed, I would be curious what this particular media would push in terms of headlines following a terror attack, a time during which the media does eschew complexity in favour of instating a climate of fear against an enemy that must be vanquished (“Mission accomplished!”, they would gleefully claim, six months later, when nothing has changed.).

Our country and our Constitution are finished, however, if the most sweeping, authoritarian and undemocratic restrictions on individual liberty ever contemplated are not subjected to legal challenge and accountability.

Where was this line when the Patriot Act was voted unanimously but for the lone voice of Representative Barbara Lee, who was then accused of being a traitor to her nation? I would look into archives, but I’m quite confident that nothing as strongly worded as this had ever occurred during the establishment of rendition, the legalization of torture, the overseas detention of combatants outside the laws of war, the mass surveillance, and constant conflict that has marred the United States constitution – without even the beginning of a hope for a 9/11 trial – in nineteen years.

Yet the Wall Street Journal just can’t sleep at night because public health requires them to relinquish a fraction of their privilege for a short amount of time. This is not what the ACLU stands for; in fact, the ACLU would likely challenge in court the premature re-opening of states should contamination rates spike, especially in a country that has no access to health care, once again, a human right, something an opinion writer would consider unlawful. Alas, this is not what ideology dictates, and human rights have been washed down the drain in one opinion piece I hope will never last the test of time and will be long forgotten in the post-pandemic world, when my colleagues and I will have to indeed go to court try to fix the broken pieces of, on one hand, excess regulation and, on the other, the refusal to act according to the law.

But this is not the first time human rights are just inconvenient to some, is it?

 

Northern discombobulation

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In the middle of a pandemic, where everyone worldwide is counting their dead, pouring over curves, peaks, spikes, and dips, where every little dot is a human life drowned in the name of the god of statistics, it feels trite to extract one life, and make it important. What would be even more painful, and egregious, would be to turn this one life into a symbol of everything larger than them, bigger than the pain of their loved ones, and plant it as a monument to all those wishing to worship another god – politicisation, bigotry, peace – as opposed to the life itself.

It’s been one year since my friend Lyra McKee was gunned down in Derry. It’s been one year with a couple of people in custody, some outrage here and there, and fortunately, a compilation of all her unpublished work released by her publisher with the consent of her family. It’s been one year today, and it’s a year during which so much happened, that I couldn’t stop thinking, for a second: Lyra should have been there. Lyra would have been on the frontline with NHS workers, defending a welfare state that cares about all and not a few; she would have investigated governmental failures to protect; she would have reached out to us human rights defenders to see what could be done to ensure security and health, and what were our primary concerns for the post-pandemic world. She would have, would have, could have, she could have, all of this potential, wasted away.

This isn’t my grief. It is Northern Irish grief. It is this very form of anger mixed with the powerlessness in which paramilitary recruitment incubates 20 years after the peace process. It is the fury bubbling below the surface of our tired skins that a 29 year old would still be adding her name to the list of those who continued dying after our official statistics ended. She has become one of those she were writing about. Those young lives, all of whom mattered, all of whom had loved ones and futures and maybe an education, a vocation, a calling, all of those beating hearts that had not been defeated by the lack of prospects in our respective neighbourhoods, that could have helped radiate Northern Ireland not just in Ulster, but in Europe, and beyond. Lyra died because someone in the N-IRA went out that day and decided the right to life wasn’t their priority. Most importantly, Lyra died because she was doing her job, and the N-IRA would not stop terrorizing communities.

I don’t care about their apology, but I care about all those messages I have left on my phone. This isn’t a peculiar loss, either. Throughout the world, families, extended ones and close ones, have those empty chairs, those absences, those ghosts, their candles at their windows, because terrorism, conflict, insurgency, cartels, have robbed them of someone that was crucial to their stability. Lyra McKee was a journalist, and she stood up, wrote, researched, interviewed, probed and poked for all of those bodies, the nameless and the interred, the disappeared and the headlines, to figure out why they were not amongst us anymore. Her particular skill, what made her writing so specific and her voice so unique, was that she was capable of entirely removing herself from a story and give the front row seats to those voiceless citizens. She focused outside of the statistics. The new generation – hers, and the ones that came after – that continue to suffer the mental health deterioration due to the conflict, the unspoken suicides, the lost boys of paramilitary machismo, the forgotten girls of religious bigotry. The issue with Northern Ireland, you see, is that every cobblestone hides something underneath it. Every brick probably rings hollow. Not only did we need Lyra, we need more journalists like her. She had spoken with the support of PEN and Amnesty International on the importance of investigative journalism at a time when the political will on both sides was to forget and maybe, down the line, accept reluctant forgiveness. Amnesties were not Lyra’s beat. Lyra wanted accountability, and she wanted them for all.

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I wrote about this before, but the way Lyra McKee and I met was because she had heard of me, a girl from the lanes, that had somehow made it out, and had tried to do something that would make the city proud. I don’t know if I had the chance, throughout all those years, to tell her that she was the one being the standard for what Northern Ireland can achieve. She was the role model. She was a powerful voice, a loving caretaker, and a passionate partner to the love of her life, Sara. I would send her photos of wherever my travels would take me, and she would make plans to be there some day. My losses and my frustrations were hers. My wins and my elation were hers, too. This is what friendship means. But there is a strange bond between a human rights lawyer and a journalist: it’s truth. Granted, the two professions butt head often enough that this may sound odd, but truth and justice are two fundamental values that could never be replaced. We talked about our dead, in the middle of the night, or over coffee; we talked about exile, displacement, about parallels between this war and others. She wrote so beautifully about how Northern Ireland could be so much more than what it is. Because it can. And I have to believe it will.

If we are about truth and justice, the very least we can all do is carrying on Lyra’s work. It’s to leave no stone unturned, to advocate for all victims of the conflict, to continue pushing for accountability, to force recognition and acknowledgement of every repeated pattern in current counter-terrorism operations, and to respect, honour, protect the freedom of the press. We have to commit to ensuring a brighter and positive future for everyone across Ulster, and to uphold their civil and human rights. LyraMcKee did not give up on Northern Ireland, and neither should we. This isn’t about the guilt of the diaspora. It’s about what we can do, right here, right now, to put an end to paramilitary recruitment, to demand more from those tasked with enforcing the peace process, to push for deeper integration of communities, take those walls down, and giving each and every grieving family what they were asking for all along. Truth. Justice. And the end of the staccato sound of a rifle ripping through a dark and moody night. No more of those. No more waiting for wailing sirens, no more being interrupted by the dull vibration of a distant explosion. No more. 1213885-funeral-of-journalist-mckee-in-belfast

She is not the first person I have lost to this particular war in which I grew up. I am, very much, this war. She is not the first person I have lost to a terror attack. She is not the first journalist to have been killed while performing their job. She is not the first friend whose loss is leaving an empty space where text messages and dinners at Home should be. The question “why” continues to resonate, loud, insistent, a power drill to the skull, every single time. How can someone die in Derry in 2019? How was someone with such a strong activist background absent from the celebrations of the legalisation of same-sex marriage and abortion? We will keep working, speaking, writing, publishing, advocating, and litigating until Northern Ireland sees a future at the end of this very bleak and much too long tunnel.

There are no lessons learned, because senseless death is senseless death. There is going forward. For Northern Ireland. For us all. For Sara. For journalists worldwide.

The mission has never mattered more.

The future of transnationalism

COVID-19: Commission sets out European coordinated response

It isn’t just the pandemic we are discussing, although it is at the forefront of our minds as efforts for mitigation are unequal and only somewhat effective. We are, and must, also discuss the post-pandemic world and in that, a conversation has already been blooming faster than cherry blossoms on this incredibly warm confined April: the bell would be, unbeknownst to most but clear to opinion writers, toll on the European Union.

All of those pieces have one thing in common: the European Union, which was, according to some, on its last wobbly legs due to the rise of far right populism in some of its member states, and according to others, in an unprecedented position to take the lead on domestic and international affairs, has collapsed not because of its economy (that has collapsed worldwide), but because of…

Nationalism on the time of coronavirus (The Guardian), the lack of a fiscal union (the Guardian again), individualism instead of solidarity (Carnegie), “complacency, overconfidence and a lack of preparation” (Politico), lack of debt-sharing(BBC), and I could go on. From those, we can identify what the real problems have been in the coordinated EU response, but why it is premature, and even dangerous, to call a time of death on the transnational institution.

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I – The Commission response

Just like in every other area of the European Union policy, access to decisions is easy and transparent, but communication itself remains a weak point. The whole coronavirus coordinated response can be found here, and sadly is lacking, at this point, a consensus on the “coronabonds”, or bailouts, between member-states. If a commentator is surprised that common finance is a sore subject amongst member-states, I’m not sure this blog will be enough. The argument, however, that the urgency requires to set some old grudges aside or to play the sovereignty card is entirely valid.

A – the response: coordinated, common, and concerted

One of the main criticisms in the aforementioned pieces concerned the timing of the response, but this is not strictly limited to the EU. All member-states are criticized for having enacted shelter in place or other forms of lockdowns too late, according to some, but the reality is that no legal measure could be undertaken without the base footing of scientific certainty. The timeline of the EU response can be found here, with the note that most measures with regards to public health were initially left in the sovereign domain, until it was EU transnationalism and solidarity that was asked to be triggered in the face of dangerous economic recession and the possible danger posed by free movement.

This timeline starts on 9 January and concerns information-sharing between member states regarding the state of a health crisis. This is much sooner than most commentators would have expected, when the first Council of Ministers made a public decision to close the external borders and implement green lanes. The first official meeting on the impact of the coronavirus was on 17 January. By 31 January, funds were allocated to research; on 28 February, started the joint procurement meetings. The temporary framework to assist economies that would face a recession dates from March. It is unclear as to whether the criticism that the EU did not respond appropriately to the crisis, from containment of freedom of movement to supporting member states’ decisions to bail out small businesses can be an indicator of failure.

What could make or break the EU’s image in the collective consciousness however is whether or not the EU, led by its strongest economies – for what it’s worth, France, supposed to be one of the triad, now has a national debt of 122% and is in a recession – can summon the political will to make the economic union work. Beyond that, the Eurogroup and other member states will have to understand this is but one piece in a much bigger puzzle: free flow of medical equipment and personnel; repatriation of infected expats; transfer of patients from saturated member states; joint procurement funds; border control; seizure of essential personnel and manufacturers; etc. While we focus on what the EU can do for us, we much too often think about it in terms of economic needs, while it can also be a marker of whether or not there can be any form of internationalism and global solidarity projects at a time of a global crisis that doesn’t simply affects markets, but affects human sustainability.

B- the pressure of economic sustainability

Once again, it is over the inequalities between member-states and their respective capacities to withstand a crisis that makes the EU both necessary and in a deadlock to find a response. When Italy asked for further financial assistance, beyond the 500billion eur envelope that will finally not see the light (yet), it faced opposition from other member-states. Italy has suffered the highest death toll of the pandemic since the beginning; in response, the country, currently governed by the far-right, upped the Euroscepticism ante. The Commission response rang a little hollow still. This is far from being the first time that member-states butt heads over financially assisting one specific other, but the issue is whether the EU Council and/or the EU Commission will be able to force consensus at a time when it is the only option.

Maintaining salaries, health care coverage, and businesses thriving is absolutely crucial if we want to wake up from this nightmare in a post-pandemic world that has a hope of normalcy. After months and months of containment, with its slew of human rights issues that have already started to make their way to international courts, states have to answer to the welfare of their citizens – and public health is a sovereign domain, that is not relegated to the EU. Many legal commentators much more qualified than this one have however agreed that any form of legal, political, and economic sustainability would have to come from coordination, cooperation and communication; but the issue remains financial before it is addressed as a human threat, something the EU should reframe as soon as possible if it does not want to leave the battleground to more traditionally politically inclined institutions such as the Council of Europe or the General Assembly.  This is far more important than goods – but if there is any form of solidarity in transnationalism, it’s because we have the capacity to address each other’s concerns in a way that is not isolationist. This is a debate that predates the pandemic, and that has plagued the EU since its inception.

How is the European Union dealing with the COVID-19 pandemic and ...

II – Why the EU matters in time of crisis

Several conferences have highlighted the inescapable fact that there are only two ways the post-pandemic world could be shaped: either by a continuous rise of the authoritarian trend we’ve seen attacking globally and targeting by weakening our institutions, or by immediate action on the part of human rights defenders to protect, strengthen, and ensure that the rule of law will perdure and last. The European Union is not just a fiscal or economic union that is to be relied on times of crisis; it is a political and legal structure that also has a choice, within its own executive bodies, to decide to give in on populist criticism or to stand up for a future in which it will have a supported place.

A – Because it can fail, and has to be held accountable

Maintaining salaries, health care coverage, and businesses thriving is absolutely crucial if we want to wake up from this nightmare in a post-pandemic world that has a hope of normalcy. After months and months of containment, with its slew of human rights issues that have already started to make their way to international courts, states have to answer to the welfare of their citizens – and public health is a sovereign domain, that is not relegated to the EU. Many legal commentators much more qualified than this one have however agreed that any form of legal, political, and economic sustainability would have to come from coordination, cooperation and communication; but the issue remain financial before it is addressed as a human threat, something the EU should reframe as soon as possible if it does not want to leave the battleground to more traditionally politically inclined institutions such as the Council of Europe or the General Assembly.  This is far more important than goods – but if there is any form of solidarity in transnationalism, it’s because we have the capacity to address each other’s concerns in a way that is not isolationist. This is a debate that predates the pandemic, and that has plagued the EU since its inception.

B – Because this accountability matters in a world with none

I know long time readers will see this as yet another display of my EU blue bleeding heart, but this is in fact in moments of crisis that we can test, as informed citizens and activists, whether institutions are strong enough to withstand such a trying time. The EU was built on rubble; it has faced many crisis over the course of its existence already; the question is why a global one would be its downfall. The virus has, indeed, so far mainly affected global north countries, and two EU countries more specifically in Spain and Italy. But this does not mean the EU does not have the means to respond; what it does is try to arm member states with the tools, information, and resources to respond in their own ways and coordinate as much as possible.

An open letter, signed by 80 MEPs and relayed by NGO Access Info, has demanded that the Commission takes a closer look at the measures enacted by government under pandemic responses that could amount to violations of human rights – and this is absolutely crucial that not only we, as activists, lawyers, defenders, and citizens, remain vigilant, but that we can trust our institutions to do the same. Criticism of the EU because it does not reach the agreements with need is welcome and transparent; but we can not remove the responsibility of member-states in this lack of agreement, with the usual fractures of northern European countries footing the bill for the southern ones. Transnationalism should be based on principles of solidarity, and if we all agree that mitigation takes priority over accountability right now, the Commission must act, protect Italy, France, and Spain; offer a bridge to the United Kingdom; and press Germany, the Netherlands and Sweden for the political will to save a country such as Italy, already battling its domestic demons.

 

Emergency pandemic

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Al-Jazeera on Wuhan Province, China, February 3 2020.

Adding my unnecessary voice to the chorus of human rights defenders rising up in the wake of public health emergencies worldwide, the title of this piece borrows a phrase from Fionnuala Ni Aolain, the Special Rapporteur on human rights while countering terrorism: we are facing two pandemics, one due to the COVID-19 virus, one of declared or de facto emergencies, equally as contagious.

Conversations have centered around two issues that are hard to reconcile: one, the need to maintain public health – the right to health, safety, and security of persons – at a time of a global pandemic. The second is to preserve not just those human rights, but all others at a time when the pandemic requires states to take action that can lead to derogating from some of those rights. A global pandemic highlights inequalities across the board: in health care access, perhaps as the most obvious, but also the right to work, protection from gender-based violence, access to food and water, housing; but also fair trial, protection from arbitrary detention and ill-treatment, keeping in mind the rights of those too often left aside: the rights of the disabled and the detained.

Emergency experts, like Dr Alan Greene, the UNSR on countering terrorism, as well as experts on executive powers have commented on the issue of emergency. While no human rights defender would argue that freedom of movement should not be restricted in the name of public health, the issue of increased and sometimes unreviewed and unchecked executive powers is a human rights concern for us all. Across the globe, countries have taken measures either in accordance with transnational powers, such as the EU, or in direct transgression therein; deployment of armed forces and detention for violating quarantine multiply; there is no protection for migrants and other vulnerable populations with no access to hygiene. Soon enough, the situation of the United States, where states are at aggressive odds with federal authorities, risks being the wrong model on how our modern democracies are capable of dealing with a crisis.

Before we turn to the issue of balancing public health versus emergency powers, some of us are old enough to remember this is not the first global pandemic that has befell the planet. This is however the first one that has benefited from such wall-to-wall journalistic coverage, that has captured minds and created a climate of permanent anxiety. The issue of security in the management of public health is also not new; the policing of human behaviour and the maintenance of human rights at a time when directives must be taken has been tackled before. The AIDS pandemic, which for decades had a fatality rate close to 100%, demonized, isolated, criminalized even, a portion of the population for being supposedly more at risk than another. To this day, the stigma of a HIV+ diagnosis, despite large advances in medical research that make it entirely possible to live a full and long life, as well as no longer being a vector of infection, perpetuates painful and degrading discrimination. While it seems widely accepted in mainstream circles that COVID-19 does not discriminate alongside gender, racial, religious, or sexual orientation lines, it bears the hallmark of social policing in the same vein. We owe it to the dead of the AIDS pandemic, the great plague of the past century, not to repeat the same mistakes.

First, we are going to examine the argument in favour of a formal declaration of emergency, and secondly, attempt to provide solutions (ambitious, I know) to this not-so-unique situation this world is finding itself in. This will be rooted in panels held at Columbia Law, via ATLAS Women, and online, where all lawyers gather these days due to confinement.

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Image: AFP

I – A formal declaration of a state of emergency

A formal declaration takes the form of the head of state, or the governing body, of a member state notifying the guardianship of a given covenant they have activated provisions for emergency. The definition of what could amount to an emergency in a nation-state varies from treaty to treaty, but is generally focused on what threatens the life of the nation, the running of its institutions, or the security of its citizens. Over the decades, emergencies have taken many forms, and have been declared in the wake of various events, mostly terrorism and acts of war. Public health is rare, but not new; the declaration still needs to be made, as treaties provide for an important distinction: derogable and non-derogable rights. This section focuses on two treaties, the European Convention on Human Rights (ECHR) and the International Convenant on Civil and Political Rights (ICCPR).

A – Derogations from the ECHR

The situation is extremely volatile and evolves at a rapid rate, so the countries listed below are only to be understood to have declared emergency at the time of writing. Out of the 48 member states of the Council of Europe, only 8 have issued reservations or declarations, while 15 are under what we can only consider to be a de facto emergency, including France, that ended its previous one in late 2017.

Under Article 15, states are allowed to derogate from the Convention, only on derogable rights, for emergencies “threatening the life of the nation”. What follows the formal declaration is what formed the argument for many choosing to side with emergencies: a system of regular reporting, monitoring, and accountability mechanisms operated by the European Court of Human Rights (ECtHR). As such, a formal declaration of emergency automatically places the measures taken by the state under a microscope and allows the Council of Europe to decide whether those measures are violating the derogation itself, by infringing on non-derogable rights; it also is allowed further transparency by scrutinizing whether the duration of the state of emergency itself matches the threat posed to the public and/or to the institutions, so as emergency doesn’t become normalized and further undermines the positive obligations upon said member states.

Outside of the somewhat natural legal instinct that would have us reach the conclusion that states did not declare a state of emergency to avoid scrutiny, lies the issue of whether a public health crisis reaches the same degree of severity and gravity that immediate terrorism threats or acts of war have triggered derogations in the past. Indeed, most states already have within their domestic instruments legislation allowing them to take measures outside of the norm of law enforcement powers for the purpose of maintaining public health, such as requiring the enrolment of further medical personnel, creating humanitarian lanes, postponing non elective medical attention, nationalising manufacturing of medical equipment, etc. However, the extremely contagious nature of this particular strand of coronavirus and the lack of information available to scientists in the early weeks of the propagation worldwide has led to measures that affected the population as a whole, starting from restriction on freedom of movement and the right to work via mandatory confinement.

As a political transnational body, the Council of Europe is bound to provide to member states the range of motion they need to act in order to “flatten the curve”, ie. slow down the number of registered cases and recorded deaths to a point where the pandemic can be managed by their respective health systems. The ECHR however is unlikely to agree to detention for violation of confinement, to derogation from privacy rules with mandatory disclosure of tested status, or the presence of armed forces in civilian areas strictly to enforce order in the absence of an insurgency. In addition to this, provisions in accessible legislation – made available via several trackers, including on the OHCHR’s website – are attacking due process and the right of a fair trial and to proper representation, as courts and court personnel are also confined or submitted to social distancing issue. What constitutes “essential personnel” does not always include legal workers, meaning that for any violation of those provisions, the possibility to access thorough and transparent judicial redress has already made headlines, specifically in the United Kingdom, and in France, where the latest decree on confinement was immediately taken to the administrative High Court that requested precisions and clarification on several points of the legislation.

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Image: Tehran, Iran, March 2020. AFP.

Article 15 has been at the forefront of many conversations due to the re-opening of Ireland v UK in 2014; the two-year long state of emergency in France following the terror attacks in 2015; the follow-up in Turkey after a failed coup d’état in 2016. If human rights treaties allow for derogations, it is because they accept situations in which states may not always function under ideal circumstances; but they are in no way a blank cheque. Article 15 lists rights that are non-derogable and triggers a system of review. For countries that are not members of the Council of Europe, it is the ICCPR.

B – Derogations from the ICCPR

So far 23 countries, mostly in Latin America, have emergencies, but only a few of them (the number is not currently available) have deposited a formal declaration by the treaty body under article 4. Sub section 3 of said article provides that any member state wishing to derogate should inform all other state parties via the United Nations Secretary General (UNSG) and a further communication should be made regarding the necessity and proportionality component of said emergency under sub section 1: an emergency threatening the life of the nation and to the extent that the exigencies to maintain said nation require a derogation. The ICCPR is however clear that not all rights can be derogated from and this is already causing issues, with a brand new statement issued by EU countries denouncing abuse of emergency powers– while some of them operate under a de facto emergency. Under Article 40, the accountability mechanism lies with the Human Rights Committee, examining not just the decision to declare a state of emergency and the justifications therein, but working toward re-establishing political normalcy as soon as possible and ensuring that the rights that must be preserved regardless of the situation are not infringed upon.

On this note, several Special Rapporteurs have already voiced concerns regarding abuse: Agnes Callamard, the UNSR on extrajudicial executions, discussed police violence. The OHCHR website itself has created a section reserved to COVID measures, including the tracker, and with the help of UNSRs, created guidance on how to respond to a public health crisis without damaging human rights. The UNSR on racism highlighted xenophobia, predominantly anti-Chinese but taking many forms, specifically holding a group of people responsible for the spread of the virus. It is difficult to imagine that emergency will not heighten and increase individual and collective anxiety as to the future, the health, and the political response to this situation in a way that will pose further human rights concerns, specifically in the cases of gender based violence (the number of domestic violence incidents in countries under lockdown has spiked); gender equality will regress as more and more women will be removed from the workforce and face home care duties; unemployment will hit women harder, as they already do not benefit from wage equality; in general, all minorities bear the brunt of any crisis, as has noted the UNSR on the right of minorities in this statement (this is not mentioning refugees, internally displaced people, and the detained, all of which can be found on the OHCHR website).

As we’ve seen, the review by the Human Rights Committee will be complex and span a wide range of possible or averred human rights violations posed in the wake of Covid, without mentioning the already ongoing discussion attempting to pin criminal responsibility for the outbreak. At the very onset on human rights defenders publicly issuing their worries, the response was that necessity would trump those responsibilities, that however never cease to exist. While fighting for human rights is not about winning hearts but rather minds, it is however important to insist that the threat posed by the virus can’t compare to the threat posed by losing our mechanisms of accountability, review, and implementation; as such, we need innovative and creative ways to respond in a timely and efficient manner.

II – An international, interdisciplinary, and evolutive response

Writing this piece meant keeping track of every development in the response in the human rights community, almost hour by hour. A twitter account called COVID19 Emergency Watch is now including information compiled by Amnesty International, Human Rights Watch, the Committee to Protect Journalists, Index on Censorship, ACLU, Reporters Without Borders, Privacy International, Statewatch EU, and Freedom House. All of those non-governmental organisations, and surely many others, have pooled their resources in order to be able to devise a strategic response on a legal and political basis. While this is extremely welcome and undoubtedly useful, this vigilance must go beyond the confinement, if you’ll allow me this, to the law.

A – Mixing the legal with the political and the medical

None of us are epidemiologists, and the question of necessity of this emergency boils down to what the science tells us about the methods of transmission of the virus, the duration of incubation, and the likelihood of developing severe, life-threatening symptoms. As such, it is imperative that, in our future conversations and decisions, we include medical personnel, that the World Health Organisation (WHO) joins in large scale statements issued by the OHCHR, and that we understand what is at stake to maintain the right to health, or at this stage rather alleviating the lack thereof. The issue of “fake news”, ie. disinformation, was already omnipresent long before the virus and had contributed to human rights violations in the name of countering terrorism or humanitarian violations in the name of countering insurgencies. Now, this same disinformation circulates even more widely due to the lack of experts, all of them tied up in trying to respond to the pandemic, the medical profession and medical humanitarians being strained beyond belief to treat cases with dwindling resources.

 

A NATO airlift for medical supplies. (Photo: NATO)

The law is not and should never be an ivory tower in which no other form of expertise is welcome. Human rights, more specifically, is by nature an interdisciplinary form of work – not just in relation to political science but anthropology, sociology, statistics and journalism have become core assets to supporting research, litigation, and information to activists. This pandemic has shown our own limitation when assessing necessity and proportionality; there is a consensus that something must be done, and must be compliant while being performed, but without having a clear and defined line on how much we can accept as being an argument of necessity because we do not have the scientific knowledge or resources to know what we are entitled to expect from political leadership at all levels. As emphasized during a multi-panel symposium organised by Columbia Law in partnership with Opinio Juris, not only is this emergency pandemic forcing us to rethink the way and the rapidity at which we function, but the post-pandemic world will definitely see a shift in paradigm, as noted by UNSR Fionnuala Ni Aolain. We have already seen shifts in paradigms before, and rarely have they included human rights as their key priority. This must change; we have to be creative, innovative, use our networks, make the best of the internet, rely on scientific bodies and reach out to medical professionals, pharmaceutical industries, and leaders such as MSF to assess this need. Nurses and doctors’ unions, organisations such as the NHS in England or the Center for Disease Control (CDC) in the United States, can also assist us in issuing guidance for a comprehensive response – proving human rights are never theoretical, but rest on a strong basis of verified facts to ensure protection to all.

B – The cost on modern democracies

What this does is paint a picture on how well nation states can respond to a crisis: whether human rights obligations are weighed against public health, if legal opinion is sought after and researched before drafting legislation, and if maintenance of this extremely fragile balance is a political concern or simply window dressing in order to keep the social peace. Several threats to democracies and the rule of law have come, some not gone, over the last two decades and have left traces of their dents into global solidarity, human rights activism, and freedom of information, to name a few.

This pandemic is one of those threats. The emergencies, whether formally declared or not, always run the risk of outlasting the risk to public health and rooting themselves into a new normal, a new form of deference to the executive in times of uncertainty, lack of safety, untrustworthy information and populism. The pandemic adds its own history to the pile of events that have shaken liberal democracies to their core and have gnawed at hard won battles for the rule of human rights law. If terrorism and countering terrorism have redefined the doctrine of what constitutes a state of war and what is lawful detention, not mentioning interrogation, public health will drive inequalities even further, creating crevasses where there was once a hole that could be mended, and highlight the failures of governments that preserved themselves before preserving the public.

The USNS Comfort arrivés in New York City to relieve saturated hospitals. Photo: Military Times

This narrative has been highlighted during two important conversations, taking place in the overcrowded internet: a discussion between the international professionals at ATLAS Women, and during a panel hosted by Columbia Law just a few days earlier. The former mentioned that emergency responses were proliferating due to the same increase in authoritarian regimes and extremist tendencies that have dominated the political landscape in the last five to seven years; the second included panelist Yaqiu Wang, a researcher on China based in New York, who discussed at length that state controlled media helped push a narrative that only a strong and unencumbered – understand, unchecked – executive could handle a crisis. Human rights and human rights law have always had to push against the very persistent myth that they represent a weakness: their universality, equality, and limitations were seen as a restriction on what strong power, or some belligerent idea of leadership, could achieve.

In fact, the rule of law can be a strong, if not the only, bulwark against abuse and chaos. The battle for those emergencies to be declared formally so transnational and supranational bodies can exercise their due diligence has only one result: accountability. For now, as many have pointed out in much stronger words, it is about mitigating the damage, by focusing on the most vulnerable and ensuring their right to safety; by drawing attention to state responsibilities toward detainees; to containing contagion in a way that isn’t infringing on anyone’s rights. The securisation of public health is not new. But years and years of extensive terrorism legislation has led to emergencies being akin to defining and fighting an enemy, even one that is biological and not individual, that is indiscriminate and not political. This is how some US states have started charging irresponsibility and vectors as terror charges, as opposed to using existing legislation on threatening one’s life or one’s security. Fines and detention penalties demand that emergencies be monitored; the rapid development of surveillance technology to control freedom of movement is a massive privacy concern; the abuse of law enforcement against populations is not one to minimize.

The question is whether what we are afraid of now justifies being constantly afraid later.

 

 

All Too Well

After all the « Afghan War is going to college » jokes, it feels odd and entirely flippant to realise the detention facility located in the naval base of Guantanamo Bay has also passed a milestone, one that it should have never reached. Not that the facility should have ever existed in the first place.

Camp X-Ray Guantanamo Bay

A detainee is carried by military police after being interrogated by officials at Camp X-Ray at the US Naval Base at Guantanamo Bay, Cuba, February 6, 2002. 
Marc Serota/Reuters

Most commentators on the Afghan War commented that an entire generation had perhaps witnessed or felt the loss of coalition soldiers in Afghanistan; that young Afghans had never known anything but the war, the Long War, the war that was supposed to be “the good war”. It has since been, on and off, in the public consciousness, depending on whether a new president would order a surge of troops or withdraw them. Meanwhile, a war rages an ocean and a continent away. Same applies to Guantanamo Bay. Distant from US soil, while being much, much closer geographically – on the tail end of Cuba – Guantanamo is now part of the large US terror detention complex, and its remaining detainees, 40 of them, have more or less disappeared from public consciousness.

It has not always been this way. The prisons – Camp Justice (sic), Camp X-Ray, Camp Delta – were meant to be a secret, guarded by the Joint Task Force Guantanamo (JTF GTMO). The base was the last stop on the rendition path devised by the CIA, where suspected terrorists were captured, sent to a black site, tortured, sometimes sent to secondary or tertiary locations to receive the same treatment, only to end up at Guantanamo Bay, where the torture would be constant. A vast portion of them was never charged with any crime before their release. They would be repatriated, hopefully, some time resettled, in countries where they had no relatives and didn’t speak the language. None of them have access to restorative treatment since their medical files are not accessible. Some continued to be labeled terrorists even after release and in the absence of evidence.

Guantanamo Bay was, and continues to be, a legal black hole. It fits every cranny of the US reservations to UNCAT: it is not on US soil, it is not targeting US citizens or nationals, and fits the pattern of the war on terror that is littered with exemptions to human rights law for the purposes of “countering” terrorism. After the first Freedom of Information Act regarding the identity of the prisoners by the Associated Press in 2006, the transfer of over 700 detainees all heavily traumatized and shellshocked by the detention, no matter how short, or absurdly long, Guantanamo became a symbol. It became a household name; it became a focus for retaliation; it became the centerpiece of everything that went wrong after 9/11. Guantanamo is much larger than the detention facility it is, and its ramifications placed millions at risk.

I once graded a paper, in 2012, in which a student wrote, “After President Obama closed Guantanamo…” and had to strike out the line three times with a red pen. While a strong promise held throughout the campaign trail before his first term in 2008, Obama never managed to close the base, not by executive order (EO), not by attempting to repatriate its current detainees, which numbers fluctuated heavily over the course of his presidency, to US soil, in maximum detention facilities, through the National Defense Authorization Act (NDAA), the bill setting the budget for the Pentagon and needing approbation from Congress. At each point of the legislative process, the repatriation of Guantanamo detainees on US soil was branded a national security risk. Considering that those “forever detainees” may not be charged, or that the 9/11 trial – the very purpose of this entire endeavor spanning the Afghan War, CIA rendition, Guantanamo Bay, and NSA wiretapping – is marred, drowning in the quicksand of the US government’s own making,  it is unclear what risk those detainees actually pose. After decades of torture, some of them are no longer mentally fit; others need geriatric or geriatric-adjacent care; for the large majority, we don’t even hear about them.

(Crédits image : Michael Winterbottom/The Road To Guantanamo)

Photo by Michael Winterbottom, from “The Road to Guantanamo”

And we barely hear about Guantanamo either. Yet two events placed it into headlines recently, to remind everyone that forty men are still being detained with the bare minimum: access granted to the ICRC, but not UN experts;  and seeing their lawyer through a difficult security screening process. Guantanamo detainees’ jumpsuits became a focus point for ISIS’ propaganda videos, but considerable ink has already been spilled on that by commentators far better versed into extremism analysis than I am; it’s the human rights angle that I wish to discuss, especially under the tumultuous era of one very special anomaly – a Trump presidency.

James Mitchell on the witness stand

The two disgraced psychologists who devised a torture programme for the CIA, and having been awarded a total of $81 million from the taxpayer’s dime for their efforts, have only faced a courtroom twice, and only once as defendants. In the civil suit that opposed them to the family of Gul Rahman, who died of hypothermia in the prison in Bagram, little filtered of their actions and positions except a desperate and unhelpful argument they were “following orders”, partially inaccurate and particularly ineffective when it comes to grave human rights violations. Bruce Jessen and James Mitchell have cast a long shadow on Guantanamo, and that is because they were also present on the site of interrogations – including at a black site in Thailand. This same black site once overseen by Gina Haspel, now promoted CIA director, saw the waterboarding of Abu Zubaydah, once more demonstrated by James Mitchell for the likes of Langley officials who wanted the torture to continue despite Zubaydah’s attempts to cooperate (he is one of the co-defendants of the 9/11 trial).

This same 9/11 trial, dragging on for years, wearing military judges out, and seeing no evidence that isn’t tainted by torture, continues at Guantanamo ever since it first started in 2013.This time, defense lawyers are calling the architects of the torture programme on the stand, so it can be made clear to those reporting on the trials and bringing it to the attention of the general public, that everyone is standing in this room because of a grave human rights violation. Mitchell’s testimony, highly anticipated, was infuriating for two reasons: one, because he was called as a witness, not a defendant; the US has so far refused to abide by its obligations under UNCAT to investigate and prosecute instances of torture. The second reason is that Mitchell displays no sign of remorse, played the patriotism card ad nauseam, and details his presence at a waterboarding session as nothing more than an administrative demonstration meant to illustrate that his methods had yielded actionable fruit, as Abu Zubaydah was cooperative. The vast spectrum of emotions through which Mitchell navigates during the various hearings does not exactly answer the question: what has he done, and what for? But he did answer a pressing one:

FILE -- James Mitchell, one of two psychologists who helped devise the CIA's interrogation program after the 2001 terrorist attacks, in Hollywood, Fla., July 5, 2017. A lawsuit filed in federal court accusing Mitchell and John Bruce Jessen of aiding and abetting

James Mitchell, one of the two psychologists who helped devise the CIA’s interrogation program after the 2001 terrorist attacks, in Hollywood, Fla., on July 5, 2017. Photo: Angel Valentin/The New York Times via Redux

 

“I’d do it again.”

This blog has tackled torture at length and in various contexts: terror detention, of course, but also the death penalty, black site interrogations, denial of abortion rights, etc. It has however never had the possibility to read about a torturer explaining himself, which was what made those hearings so extraordinary and, to be frank, quite strange. With pathos streaming from his heavily hooded eyes when claiming he performed his patriotic duty, at a time when we know some of the methods included locking someone in a coffin-like box with crawling bugs, he said patriotism “outweighed comfort of terrorists.” Mitchell goes on at length about performing a “patriotic duty” in the aftermath of 9/11, “securing the country from terrorists”, and doing what he could do to obtain information. We know torture rarely if ever yields actionable intelligence, and evidence obtained under torture is inadmissible in court.  He says it was “horrible”, witnesses “tearful”, explains he himself is a sensitive person. Here’s the key. “He [ Abu Zubaydah ] had held up his end of the bargain.” For Mitchell, torture is not only acceptable and necessary, but yields actionable intelligence. Once the information is supposedly obtained, that’s where he draws the line. This is when Mitchell let out the most severe indictment of the torture programme to this date, probably unbeknownst to him at the time he said it under oath:

“CIA was never interested in prosecutions. The CIA was not going to let them set off another catastrophic attack in the United States. They were going to go right up the line of what was legal, put their toes on it and lean forward.”

And so we have this admission that it was never about adjudicating terror crimes, never about upholding the rule of law and the security of persons, and, despite John Yoo’s best efforts at legalizing what is an absolute prohibition, was clear to everyone involved that the legality – or lack thereof – was well known and deliberately violated.

The CIA is not the only one to blame. The agency, as I’ve said elsewhere, has repeatedly stated it “couldn’t have done without” the cooperation (or collusion, considering the gravity of the crime) of foreign intelligence agencies that have lent their resources and territory for the purposes of building overseas prisons. The European Court of Human Rights is still in the process of hearing those cases and of working on monitoring the implementation of its judgements. With this admission that the CIA was giving Mitchell and Jessen the possibility to go beyond the lawful and legitimate methods of interrogations, that also happen to be more efficient, Mitchell creates the intent to torture, with torture being declared and painted as the only way to obtain information in the wake of national trauma. We can’t underestimate the fear and the absolute devastation of 9/11 that is still being felt to this day. We are now nineteen years later, and James Mitchell would “do it again”, and once again, is not in prison; he has never been on a stand as a defendant, except in a civil suit in which he settled; he never stood accused – alongside many others – of violating the absolute prohibition and financially reaping the rewards. Instead, his victims – KSM and others – saw him take the stand as a witness; they were assisted by psychiatrists and psychologists trained to support torture survivors. Not only are those terror trials (MCOs) overtly long and inefficient, they are highlighting dysfunction. Mitchell continues to use euphemisms for torture and it’s not clear whether he dissociates or tries to deflect. This time, after the infamous “enhanced interrogation techniques”(EITS), he uses “coercive physical pressure.” It’s still torture.

The future of Guantanamo (because it will have one)

The detention facility has not closed under the Obama administration and remains open and functional to this day with 40 “forever detainees”, referring to detainees that are not listed to appear before any parole board and/or have been charged to appear before a military commission. They are so far not considered for any possible repatriation on US soil, not that the current presidency would ever consider such a move. If the last year of the Obama administration has considerably sped up the releases, it has still failed to consider the medical consequences of the prolonged detention without charge, the difficulty of reinsertion after a trauma that has yet to be assessed, as well as the risk they might be re-arrested due to their past. Any closing of the detention facility and/or release of the detainees must include a humanitarian component that will demand of both the Pentagon and the CIA to release the medical files, all of which will include torture. There is no escape from the fact that the US’ long history of torture has been elevated to not just government-sanctioned policy, but is practiced in the Cuban island.

Alleged Sept. 11 mastermind Khalid Sheikh Mohammed (far left) consults with his defense attorneys in the U.S. military courtroom in Guantánamo Bay, Cuba, as a man who waterboarded him, retired Air Force psychologist James Mitchell, takes the stand.

Alleged Sept. 11 mastermind Khalid Sheikh Mohammed (far left) consults with his defense attorneys in the U.S. military courtroom in Guantánamo Bay, Cuba, as a man who waterboarded him, retired Air Force psychologist James Mitchell, takes the stand.
JANET HAMLIN ILLUSTRATION

As a parenthesis, it is necessary to point out that repatriation on US soil does not necessarily mean the end of torture or cruel treatment. Several maximum security prisons in the US, such as Florence or MCC, have been the subject of scrutiny if not litigation for their practices that do cross the threshold into degrading treatment, from abuse of solitary confinement to violence and refusal of medical support. Detention facilities such as Rikers also practice extremely long pre-trial detention, that also has a body count, and would likely separate former Guantanamo detainees from the rest of the inmate population in a way that would continue their treatment. The rationale is that known or suspected terrorists (KSTs) are determined as terrorists, treated as enemy combatants – as in exempted from treatment reserved to Prisoners of War – regardless of a judicial determination or significant evidence, tainting the treatment they receive because of the nature of their crime. The US criminal system and its subsequent detention system have long been the cause of concern at several UN treaty bodies, from CERD to the ICCPR, not mentioning UNCAT and Special Procedures; repatriation will serve the purpose of returning detainees to a somewhat normalized criminal system that will allow them access to parole release boards, and access to charges and a trial. It might however seem trivial in the face of men detained for eighteen years without a possible end in sight, the absurdity of the situation being described with both humor and horror in the “Guantanamo Diaries”, penned on scrap paper with a small pen and smuggled out of the prison by Mohamedou Ould Slahi’s lawyer.

Back to Guantanamo, there is no escaping the fact that it is politically convenient for a right-wing government to already have such a facility at its disposal, should the need to reignite the capture of enemy combatants arise. And it did, with the protracted litigation led by ACLU attorney Jonathan Hafetz over the US citizen captured in Syria and believed to be a member of ISIS. This situation has been answered with the notable difference that the individual was a US citizen, but it doesn’t create a precedent for ISIS captives that be foreign nationals. Donald Trump has clearly stated that he would use the prison if given the opportunity, turning Guantanamo into the facility of choice for the various iterations of the war on terror. Saving the US government a legal capture, a charge, a trial and the contingency planning for an acquittal, a detention without charge at Guantanamo seems to be the easy way out for those with no regard for the rule of the law or the most fundamental basis in human rights. For as long as the facility is not closed and JTF GTMO staff remains on site, there will be a chance that Guantanamo will continue to cast its long, nauseating shadow over a world that has seen the consequences of retaliations and lack of accountability. There is still no policy in place for foreign fighters currently in detention in makeshift camps in Kurdish-held areas of Iraq and Syria, while EU states struggle to reconcile their principles with their fears; the US, despite being in an election year, is unlikely to let the sun set on the Authorization for the Use for Military Force (AUMF) 2001, the shortest terrorism legislation in history inversely proportional to how large it looms on the categorization of conflict.

This blog has tackled the issue of Trump’s fascination with torture and his unrepenting support of it at a time when he himself poses a national security threat. The issue with not investigating and prosecuting doesn’t just lie with the failure to meet UNCAT’s demands, or illustrate the effectiveness of the judicial system of a deterrent, the issue is that torture has never managed to infiltrate the collective consciousness as being abhorrent and repulsive. The existence of the detention facility is now a permanence, a matter-of-fact part of US citizenry, it has consolidated its place in history and will remain for as long as no one stands up to break both its literal and metaphorical shackles. The problem once lied in the continued detention of the “forever detainees”; it’s now about its place in the forever war. If a war is forever, and if its legal boundaries continue to be challenged with every new attack or interference, why would Guantanamo Bay have a different fate? Wasn’t it born of a desire to eradicate what has always existed – terrorism – and to escape what was seen and understood as of being of a bygone age – the rule of law?

So Guantanamo Bay is now 18, and some of its detainees have been there for 17 years or more. Even in the best case scenario, meaning immediate repatriation with constant medical attention, there is no giving them back 17 years of a life they lost at the hands of bounty hunters or the perceived incapacity of civilian courts to deal with terror crimes. It is is because terrorism once called for special courts and military interference with adjudication that the MCOs have taken the place of a regular trial. The fact that military judges have so far refused to let go of the issue of torture and recused themselves over ties with federal law enforcement proves that they may be in fact the radical resistance to a sham of a judicial system, but it won’t close the chapter of a trial to which victims are entitled, the country expects, and would be the only way to end the state of emergency and exemption created under the Bush Administration. As a new generation heads to the polls in November having known nothing but the Patriot Act and the detention facility, will they see through the normalized horror and choose a different way? Or have we accepted that the man-made created human rights in terror detention vanished into thin air in January 2020?

Long live

2019 is now over, and with it, a decade that brought everything either to a deafening crash or to a breathless standstill. I very much doubt that anyone is sad to see it go, and it is reflected in the articles we have perused over the years, dominated by a Brexit that didn’t happen, an impeachment that did happen, and I did my best not to mention Taylor Swift’s battle over her masters.

In this list, you will find a painstakingly narrowed down mention of the articles that have grabbed enough attention to be telling, that I believe deserve another read, that should be bookmarked, and will take us out of this decade – but ushering another age – perhaps not in the condition we have exited it, but at least with a little more knowledge and wisdom than we left it.

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Time Person of the Year Greta Thunberg, as she arrives by boat to New York City for the UN Global Climate Summit. Photo: BBC

1. Boyd Van Djik, the history of the Geneva Conventions (twitter thread)

It has been the year of UvA researcher Boyd Van Djik as he retraced the origins and drafting of the Geneva Conventions, the year the fundamental texts turned 70. What they missed, reached, and what could be improved is all in there, building on academic papers he has already published in the past. Doing so on the social media platform helped disseminate the history of a much misunderstood body of law that was still at the centre of many conversations.

2. Kester Aspden, the making of a bedsit Nazi: who was the man who killed Jo Cox?

While this is far from an easy read, and includes details about the final minutes of the Labour MP that could be triggering for many, there is definitely considerable material in this long profile of far right terrorist Thomas Mair. Those end-of-year lists have featured similar pieces before, always because they insert elements that allow us to pinpoint the moment when extremism becomes violent. The murder that has defined the current era of British politics is characteristic of its polarization: a man unknown and rarely seen, a homicide premeditated and full of rage. A friend commented: “it’s horrific, thinking of all Jo Cox could have done had she lived.”

3. Anne Thériault, Queens of Infamy: Njinga

The long running series Queens of Infamy have turned writer Anne Thériault into a permanent feature of modern profiles of female regal figures, some renowned, some forgotten, all extraordinary in their attitudes and fates. The latest instalment has everything: matriarchy, slavery, heredity, and colonialism. Retracing then lives of women who have ruled, because of and in spite of their political context and the social constraints of their era, Anne Thériault proves that history is best told when it echoes the modern times. After all, a present is nothing without a past.

4. Josie Ensor, Inside Al-Hol, the “toxic” ISIL prison where radicalized women have taken control

One story has dominated national security headlines this year, and it was the issue of foreign fighters and their families awaiting their fate in makeshift Kurdish detention camps, as European states wrestled with their own judicial and ethical apparatus to decide whether or not it was safe to repatriate. In a series of remarkable pieces for the Telegraph, Josie Ensor has looked at the fate of women, children, contextualising them in an oft too simplified conflict, placing the humanitarian concern in the perspective of a subject rarely discussed: the role of women in ISIS. From camp to camp, from family to family, the desires and ideologies differed, expanded, and commended attention. This is one of those articles where the atrocities of a war politicians were too quick to call over gather to prove that we have, in fact, learnt nothing.

5. Natasha Lennard, The Trump Administration is making it harder to find out whether it’s fighting white supremacist terror

Fresh off her incredible book, Essays on non-fascist life, Natasha Lennard takes her outstanding writing skills to the front with its attack on the Trump administration’s failures to address the white supremacist threat emboldened by its very own officials. Through her reports from the NDPL protests to the antifa battles in the streets of NYC, Lennard has championed victims of police violence, human rights lawyers against bail bonds, and has taken head on the dangers of populist, manipulative, and ethnonationalist threats by calling them exactly what they are, always wary (and weary) of euphemisms. If her series on the meaning of violence was already groundbreaking and defining of this era, the stories of resistance and of the importance of community do not make her 2019 output a story of despair: it’s a story of hope.

6. James Patterson, Here’s to bandit country: the Irish Border, writing’s new frontier

The headline is smart, but certainly not as smart as the Irish Border itself, dropping, in the middle of heated EU/UK negotiations, a book about its initially temporary existence made permanent, then invisible, and now threatening to build custom posts. There were few concerns for the fate of Northern Ireland and its residents – in fact, another Guardian headline said just as much this year – but the Irish Border decided to give a voice to those who didn’t have one, to lecture officials on history, to provide context to palpable fear, but most importantly, to be so present, so loud and so sarcastic it would be impossible to pretend it wasn’t there. There is nothing more Northern Irish than that, and the anonymous Twitter account did more for the people of Northern Ireland than its absent Executive ever did.

7. Conor Gallagher, Ana Kriégel trial: the complete story

It is difficult to reconstitute the presence of a murder victim inside a courtroom, any lawyer will tell you that. It is however necessary that for the interests of justice, and the public at large, the life that was taken would take shape, form, and life, even in the most traumatic details of its death. The murder of 14 year old Ana Kriégel, who shook Co. Kildare to its core, is, thanks to the skills of Conor Gallagher, not one of sordid juvenile deliquancy; it is one of the mystery of morbid aspirations, the rumours that whirl around rural Ireland, and the fascination caused by a girl who dared looked different. In this long read, Gallagher humanizes, to a point one could form a full size picture in their head, the Kriégel family and the loss of their child, to the point that the interrogation of her murderers take a backseat. Violence against women, after all, should always place women at its core.

8. Martin Chulov, James LeMesurier obituary

I did not know James LeMesurier, but his life saved so many, he seemed larger than life. The creation of the White Helmets, perhaps the most immediate, constant, and clear embodiment of humanitarian principles, was a light in an otherwise bleak, bloody, and inhuman war that had scattered every principle one could once hold. His death took many around me by a devastating surprise, his loss that of an ideal, but also of the capacity of one man to transcend traditional institution to work in the most forsaken of places. Martin Chulov, who has covered the Syrian war with empathy, consistency, and expertise, pays James LeMesurier an unforgettable tribute, in an obituary that resonated around the world. His work, however, must continue.

9. Fintan O’Toole, For the first time since 1171, Ireland is more powerful than Britain

It would be a lie to pretend headlines were not dominated by Brexit, and it would be hypocritical to deny Fintan O’Toole his much deserved place in the pantheon of the great columnists. A voice of reason, a shot of bleakness with a sarcasm chaser, as is the great Irish tradition, O’Toole has created a considerable body of Brexit commentary that has yet to be matched. From depicting Boris Johnson as an insufferable buffoon to calling the events on the Northern Ireland backstop weeks before others, O’Toole has one ace up his sleeve: his knowledge that, despite everything we may hear on the other side of the Irish Sea, Ireland is European, intends to be European, and will remain European. This piece is not a cheap nationalist gloat: it is the reality of negotiations as a block, and for the first time since 1171, it’s time we are reminded of the power of alliances.

10. Olivia Nuzzi, A conversation with Rudy Giuliani over Bloody Marys

Because not everything must be covered with a cloak of foggy misery, we must find the silver lining of absurdity in a world that concedes no breath of fresh air. As such, I would be remiss not to mention one the last pieces of 2019, a sophisticated mix of egotism, ignorance, corrupted grit, and the Yankees: this profile of Rudy Giuliani may become even bigger than Nuzzi’s coveted and controversial profile of Kellyanne Conway. Giuliani appears just as he is, with her commentary a deadpan voice-over of a satirical comedy that has come to life: a cyber security expert who can’t use Siri, a man who brags about “sneaking out of Kiev”, confused in his history and names, but always ensuring that his version of the story is the one in which he wins. Nuzzi lets him play, talk at length, rarely interrupting the rant, because no one profiles Giuliani likes Giuliani, and Trump’s lawyer deserved nothing more than the subtle nudge of a seasoned writer.

Special note: The Afghan Papers – the Washington Post

Always a place of excellence in national security reporting, the Washington Post team revealed a trove of documents on The Long War that create a trail of lies, propaganda, financial deceit and distress, manufactured numbers, bloated budgets, and war crimes – at the very same time that the ICC was battling itself in an appeal over a formal investigation by the Office of the Prosecutor into the Afghan war. Once known as “the right war”, this one has turned 18 this year; there is now a generation that has never known what it was like not to have troops and special operations deployed in the region. The Afghan War is now old enough to enlist in the Afghan War, a fact that should never leave the mind of anyone going through those documents, as distressing as they may be. It is time we face the truth about the damage done to Afghanistan, for a purpose that is still frankly unclear.

 

 

… and our walls are still standing

East German troops by the wall, 1964.

This year marked 30 years since the event that defined modern Europe, this generation’s historical legacy and a political breakdown that could be felt until recently: the Berlin Wall fell, and with it, the demarcation line between East and West Germany, between East and West Europe, between Soviet territories and Western liberal democracies. The Berlin Wall fell because so many lives were lost trying to cross it, a movement formed to tear this gaping wound down. It is worth celebrating; it was a grandiose moment then, and has lost none of its extraordinary influence. For people in Northern Ireland however, there is something a little different that can be felt during those eloquent speeches about freedom and togetherness: our walls are still standing, and they’re standing strong.

This is referred to as the architecture of conflict. At the time when the Irish Border was feeling like it would no longer be referred to as temporary, and unrest was brewing in the North over civil rights, London policy-makers decided it would perhaps be safer to engineer a separation between tensed communities, in Belfast, but also in Derry: they would erect walls. This has created fault lines throughout the region’s largest cities, separating communities, keeping them on each side, as if safety was in enclaves. Fast forward to a slow and fragile peace process started in 1998, and a commission tasked with taking down those “peace lines” is now lost in the diplomatic and bureaucratic maze, overwhelmed by more pressing issues that are never addressed, a government that doesn’t sit… and Brexit.

Northern Ireland exists because of a fault line, and that is the invisible (but vocal on Twitter) Irish border. Drawn in 1919, it is now home to green and grassy fields, cattle of various species, small towns, roads, and agriculture. Customs posts have disappeared; the Enterprise, the high-speed train linking Dublin to Belfast, crosses it without a second thought. The sky is of the same colour on each side of this border, that we had promised we would never think about again. It could not be more different than walls in Belfast, tall towers of thick concrete raising themselves against the shadows of the Divis Mountains, covered in barbed wire, with, at times, an old door sprung slightly ajar, through which the wind blows, but people and cars rarely pass through.

Belfast, 2015. Author.

Most would not think twice about those walls. The Commission works on keeping certain doors open for longer hours, bus routes have developed in areas where they were none before, cycling lanes have made circulating around the city easier and more flexible. But those walls are still there, in some streets blocking entire house windows, deciding of a taxi route, blocking the sunlight, hiding Cave Hill. A few years ago, social media recommended a tweet to me: a group of architects had destroyed a wall not too far from where I grew up in West Belfast, replacing the solid and opaque structure with a much smaller and thinner transparent plexiglas fence. I had no idea it was possible. So I talked to them.

Interface Architects have been working for about 5 years. Their leader, initially from Cork, travelled to Ulster and was shocked by this very unique way of living – that of being separated for a cause, of being defined by the side of a wall, and never experiencing the daily activities of those on the other side. Now based in London, the issue of those extremely visible scars could not escape those whose work is meant to create spaces for living and existing, not to separate and contain. In a way, an architectural perspective could be the only point of exit from an architecture of conflict.

A 2017 report by the Belfast Interface Project identified 116 different “security barriers and forms of defensive architecture” across four urban areas of Northern Ireland, including 97 for Belfast alone, ranging from a palisade fence (4) to a wall with fence above it (14). Only 5 of those walls have gates. The difficulty of dating the construction of those barriers lies with the various offices tasked with elevating those within the Northern Ireland Office (NIO), now under the care of the Department of Justice (DoJ). The report identifies 1969 – 1979 as the decade with the most defensive construction, considering that 1969 marks the beginning of the Troubles with the launch of Operation Banner. An interesting factor is post-ceasefire construction and the sectarianism that defines Belfast living: West Belfast, with its Irish Catholic majority, saw 23 barriers built during that period. North Belfast, with an enclave, saw half of its barriers built after the first ceasefires of 1994.

An article dated from August of this year shows that the 2023 deadline for the end of the peace walls is unlikely to obtain popular support. A resident is quoted as saying, “I’d rather have the wall there. It keeps us safe.” During various trips to Belfast, Interface Architects had to face the plethora of groups involved in the peace walls – resident groups, community leaders, NGOs, mediators, local executive, department of justice, local policing, and paramilitaries – in order to provide an irreplaceable perspective on the role of a wall in a place where people are expected not just to survive, but to live and, perhaps down the line, thrive. Author Vicky Cosstick, who penned “toward a city without walls”, explains that the walls have perhaps kept the city safe from door-to-door violence, but also did the opposite:

“There are some statistics to show that most of the low level violence that happens today, is likely to happen around the walls and interfaces […] they have exacerbated the levels of suspicion amongst communities. […] the walls have increasingly separated people. It’s even more likely now that a young Protestant or catholic working class child in Belfast will grow up without having met somebody from the other side until they go to third level education.”

Upon returning to the city later, Interface Architects realised that to organise a tour of those walls – way more than the famous Peace Line on Cupar Way – needing longer access to the walls, meaning keeping the doors opened longer than they were designed to, despite the walls themselves having turned into touristic attractions due to their decorations with politically inclined murals (depending on which side of a given wall one stands on). The tour spanned Townsend St to Cupar Way. Several black cabs tours are picking up groups on the Falls, driving them through a modern history of the area’s resistance to British policing, and the separation from the greater Shankill area. We will enter 2020 with the only progress made on those fault lines the impact of interface areas documented in the Peacewall Archive, the trickling of slow removals. The role of communities in deciding how the architecture defines their lives means that there is little way to foresee whether the 2023 deadline will be met. 3 years is a very short time to modify a 50-year landscape.
From personal history, the architecture of conflict is as much about war as it is about peace. The difference between the Berlin Wall and Belfast are massive – the former being taken down by the people, the latter being preserved by the people. The issue of fear of what is on the other side of the wall can’t be understated; it’s difficult to assess whether it did save lives or not, as opposed to those killed crossing the Berlin Wall. Belfast is very much a sectarian city still and we are seeing this now with the election in North Belfast very much dictated around sectarian lines. The current British general election, scheduled for 13 December, sees a very contested seat in North Belfast that is the perfect illustration of the political context in Northern Ireland at a time of heightened tensions and even higher political and social stakes.
But walls impede movement. It’s difficult to argue that the existence of walls are helping a peace process when they are blocking view; not just sunlight or a landscape, but also neighbors. You can’t see them hang out their laundry to dry, see their kids play on the front lawn, every day activities that we all can share and help us relate and empathize. Walls are meant to keep away from the humanisation of the other. Sadly this holds little attention: when organizing a conference in Belfast for the 50th anniversary, another conference about Brexit was taking place across the city and had captivated the global attention. No Belfast MLA had attended, despite being invited, the conference on walls despite the creation of an institutional body tackling peace walls specifically (the list of attendees, including Michael McAvoy, can be found here). Interface Architects found themselves in the very unique and frustrating position to address a political issue with no political representatives to talk to.
For interface Architects and their desire to improve the situation in Belfast, this lack of attention for peace walls has made the work quite difficult:

Brexit has jeopardized many efforts towards a peace process, not just a status quo – the issue of the border is of course the focus, but also a border poll, direct rule, EU funds etc – and walls, despite being a permanent and inescapable feature of life in Northern Ireland and especially in Belfast, are left aside. There is an understandable shift in focus, as Brexit as a whole threatens the peace process, but what is in front of everyone’s face tends to fade away in the background – despite being the opposite of that. It’s difficult to brush under the carpet what stands up.

So on the anniversary of the fall of the Berlin Wall, Europe must concentrate on the walls that are still up and the reason why they still exist. Is it social will? Is it political neglect? Is it a lack of appropriate prioritization? How can we talk about peace when there is no effort about architectural and urban integration? This is an issue that continues to plague Belfast and be the main focus for Interface Architects and that he hopes will find echo as Northern Ireland continues on its precarious and difficult path towards opening itself. There are alternatives to separation and alienation. They are not easy considerations in a context where the threat of violence is as permanent as the clouds in the sky. Without transition, there can be no integration – and efforts to integrate advance at a glacial pace, but they must continue. It starts with letting us meet who we live alongside, and reach out.