“I abhor violence but I have been driven over a life time of exposure to distinguish between dishonourable violence and the use of violence as a last resort in support of an honourable cause such as leading a liberation struggle without targeting civilians.
“Even though I am a pacifist by nature I understand that legitimate violence can sometimes be unavoidable. But that recognition inevitably forces you into debating what are the limits of acceptable violence. I have often found that soldiers and commanders, with experience of the theatre of war, have greater respect for human life than the politicians who send them into battle,” Ben Emmerson QC is in a philosophical mood as he discusses Ramush Haradinaj, the former leader of the Kosovo Liberation Army, whose case he has championed through the International Criminal Tribunal for the former Yugoslavia.
Acquitted in the first trial Haradinaj, is awaiting a judgement on a partial Appeals Chamber retrial and Emmerson is confident he will be cleared again: “This guy fought an honourable war.”
It is an unexpected statement from a man more renowned for his liberal stance on human rights and his outspoken battle against the violence of torture, rendition and drones.
Clad in cut-off jeans, a worn t-shirt and flip flops as he searches for lentils to add to chicken soup boiling on the hob of the Norfolk home he retreats to while preparing UN reports, it is nevertheless easy to see why this 48-year-old barrister engenders such polar emotions.
To many within the legal profession he is a leading silk of “leviathan intellect”, an “outstanding, clear leader in the human rights field” but equally he is the bête noire of the right wing press and sections of the Tory party, forever tarnished for representing the radical cleric Abu Qatada almost ten years ago in his fight against indefinite detention without trial.
Rarely out of the headlines in his successful court room battles, he was most recently the subject of much speculation over his failure to secure a post as successor to European Court of Human Rights President Sir Nicolas Bratza, despite being seen as the front runner. The leading QC Lord Pannick insisted there were “disturbing rumours” that he had been the victim of a right wing campaign because of his human rights work against the Government. Press reports at the time suggested that right wing Conservatives in the Council of Europe had made a common cause with Russian politicians, who equally objected to him taking on cases against the administration, to block his appointment. Tory MP Dominic Raab was quoted as saying: “If you're trying to rein in the human rights industry you don't appoint its equivalent of Len McCluskey.”
Emmerson laughs at the comparison with the trade union leader and brushes aside the debacle, simply stating that he is “philosophical” and remains a great supporter of the European court.
He is, he explains, troubled by the fact that some politicians seem at loggerheads with the ECHR, which despite finding in Britain's favour in most cases, has rattled cages back home by defying the UK on such high profile matters at Abu Qatada's deportation and the voting rights of prisoners.
“The European court has been, since its establishment, the most effective standard setting institution for human rights in the world, albeit in a limited geographical region. With the expansion of the Council of Europe to encompass many of the states of the former Soviet Union, its jurisdiction now covers 800 million people and extends across areas that are conflict torn,” he says, insisting that it’s Euros 60 million budget needs to be boosted.
“It has become popular for UK government ministers to make public attacks on the judiciary about decisions they don't like. At the end of the day exaggerated attacks on the legitimacy of the court have the capacity to undermine respect for rule of law,” he warns.
“It is a frightening prospect. Attacks on the independence of the judiciary, once they begin, gain momentum and don't stop at an international level. The Supreme Court (the highest domestic court) still has the respect of the ordinary person in the street but it is a very short step from the type of gratuitous attack we have seen directed towards an international institution to a situation in which right wing politicians and newspapers start pointing guns against the senior independent judiciary of England and Wales.
“Politically motivated attacks on the independent judiciary could cause a real crisis of public confidence.”
For now, however, Emmerson is more intent on talking about his work as UN Special Rapporteur on Human Rights and Counter-Terrorism.
Amongst his latest crusades – and he speaks with spiritual zeal – is the promotion of a fresh perspective on terrorism. His latest report to the UN promoted the cause of victims including the right to transparent, impartial investigation, to be consulted and compensated.
“There are 19 international instruments dealing with counter terrorist cooperation but not a single global treaty dealing with victims,” he says.
He sees no clash of interests between fighting for fair trials for terror suspects as well as opposing secret or indefinite detention and promoting the cause of the innocents caught up in the bloodshed.
“I worked closely with victims' organisations in preparing that report. And I can tell you that they are not calling for more torture or human rights violations in the name of counter terrorism. I meet with victims from all over the world and you hear over and over again from extremely, noble and distinguished men and women about their commitment to human rights in the fight against terrorism,” he explains, praising programmes worldwide that have brought the bereaved or injured into dialogue with the perpetrators to try and tackle extremist violence by understanding it.
He continues: “There has been a terrible polarisation between the human rights lobby on one side and the men and women who plan counter terrorism strategies on the other. I meet with both sides. The people who devise strategies that involve human rights abuse honestly believe they are taking action designed to protect the lives of victims of terrorism.
“We need to expose that myth. Far from protecting the next generation of victims they are exposing them to more terrorism because the strategies are a clarion call for terrorist recruitment.
“The right to have a fair and public trial belongs to the accused person but it also belongs to the victims and their loved ones, the right to see the truth emerge. Indefinite secret detention, unfair trials or secret trials frustrates the victims' rights.
“I see my mission in this (UN) mandate to try and begin to move the debate on from that polarised position, to try and promote an understanding of contrary points of view.”
For a man who has locked horns with states all too often he appears surprisingly optimistic that an era of cooperation and greater transparency is upon us, perhaps largely due to a change in regimes since the beginning of the decade long war on terror. He illustrates his point by detailing the number of governments calling for investigations into issues such as the use of drones or secret renditions: “There has suddenly been an outbreak of accountability fervour.”
After a decade of repressive global legislation in the counter-terrorism field it is time, he explains, for a sea change. Ten years on from 9/11 the UN has finally come to recognise that terrorism will not be defeated by security measures alone and there is a need to tackle not only the manifestations but the causes.
“There has been 10 years of ossification and we have not got very far with it,” he adds. “I am not suggesting in the duration of my mandate I will change the world but I do have an opportunity to change the dialogue.”
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