Opposition to Armed Drones: Social change and facts on the ground

On the one hand, the global system of unmanned aerial vehicles, better known as drones, can be seen as a web of contradictions.

The political leaders, military commanders and directors of intelligence agencies controlling the technology and developing the ideological framework that underpins their use, extoll drones as the most precise, effective and ethical means of combating terrorist insurgency, yet it has been shown that their use has resulted in a catastrophic number of civilian deaths.

The same people claim that drones are only used to target a small number of terrorists in the face of imminent threats, yet at the same time explain that the usefulness of drones rests on their ability to collect information through widespread surveillance, and concede that even with this information they are often unsure of the identities of those they fire upon.

They deploy drones in the name of strengthening the rule of law, yet fly them in legal grey-zones where accountability can be avoided. In some areas they are used to secure national borders, whilst in others they bypass borders completely.

The most minute details of the west’s drone programmes are supposedly subject to intense levels of oversight and scrutiny, yet the way decisions to use drones are made is completely opaque; it is a process shrouded in layers of misinformation, public relations, cryptic jargon and secrecy.

Above all, their use is justified in the name of global security, yet in areas of the middle east they are creating conditions of constant war.

But on other hand, the world’s drone programmes can be characterised in more straightforward terms.

They can be as systems of large-scale surveillance and extra-judicial killing, extended in the name of combating terrorist insurgency, that primarily effect ordinary people in Yemen, Pakistan, Afghanistan, Iraq, Syria, Somalia and Palestine.

Red Judicata

From Res Judicata by E. Adam Attia, http://www.eadamattia.com

To date, the US, UK and Israel have been the greatest proponents of armed drones. But at least eleven countries, including China, Turkey, Russia and Egypt, can call upon them, as can several non-state groups. Many other countries rank surveillance drones in their military arsenal, including all but three European countries, with Italy one in the process of arming theirs.

The increasing popularity of drones has created a booming industry, with the global market for military drones set to increase to an estimated $8.6 billion by 2022. It’s makeup is multifaceted, ranging from research studies, the design and construction of the drones’ physical components – their fibre-glass bodies, engines, cameras, and infrared technology – to the outsourcing of their piloting to private companies, and the privatisation of the analysis of the surveillance data collected to inform their use.

Huge government contracts for this work, funded by tax-payers money, create profit for aeronautical and defence companies. Among them are some of the largest defence contractors in the world, including General Atomics, the company responsible for Reaper and Predator drones, the world’s most widely used, as well as Lockheed Martin and Boeing. Israel Aerospace Industries, BAE Systems of the UK, and China Aerospace command smaller shares of the global market, with European defence companies such as EMT Penzberg, of Germany, and the Thales Group of France also involved. A large number of these companies are publicly traded, available to investors on the open market, allowing serious financial interests in the continued expansion of drone programmes to develop amongst wealthy investors.

The impact of all this has long been clear for those suffering under drones, but thanks to the work of civil society and investigative journalists it is now becoming known in the west. As the effects of the drone programmes developed in our names come to light, the question becomes what we can do about them: how do you fight back against the abuse of something like drones?

It’s a struggle that has been going on on the ground for some time. In Pakistan, for example, through the work of the lawyer Shazad Akhbar, who in 2011 set up the Foundation for Fundamental Rights to challenge the use of drone warfare and give a voice to victims of it. But those in countries deploying and developing drones or aiding their use through infrastructure or intelligence sharing also have a responsibility to act. As Jessica Dorsey, of the Netherlands-based organisation PAX, says, “The drones are here, they’re not going to go away. The question is which side of history you want to come down on.”

“The drones are here, they’re not going to go away. The question is which side of history you want to come down on.” – Jessica Dorsey, PAX

PAX, along with Reprieve, an NGO based in the UK, and the European Centre for Constitutional and Human Rights (ECCHR), based in Germany, are three European groups working to end the abuses associated with drones, and armed drones in particular.Along with individual survivors of drone attacks, their relatives, communities affected by drones, local and national NGOs in the countries in which they are being deployed, teams of researchers on the ground, whistleblowers from inside the West’s drone programmes, investigative journalists and artists, they form part of a trans-national network fighting against the way drone technology is being used.

Both Reprieve and the ECCHR began their work during the first term of the Obama presidency, when the use of armed drones began to skyrocket. Over Obama’s two terms, the US carried out at least 563 strikes in Pakistan, Somalia and Yemen, compared to 57 strikes under the Bush administration.

“When he was in opposition, Obama had been extremely critical of Guantanamo and indefinite detention,” explains Kate Higham, who works on Reprieve’s assassinations project, “he was looking for another way to operate.”

Reprieve, like the ECCHR, uses strategic litigation to try and hold governments to account for the way they are using drones, hoping thereby to influence the way they are used in the future. They take up cases on behalf of victims of drone strikes and their families, mainly from Yemen and the Waziristan region of Pakistan, and target those responsible for them. The process, however, often starts on the ground. This is where the network, which has been built up over a number of years, kicks in.

Following a strike, survivors or relatives of those killed get in touch with civil-society groups on the ground. The Foundation for Fundamental Rights is one example. Such groups can then help them launch legal action to claim redress in their own countries and demand that their governments take action to prevent further strikes, while at the same time getting in contact with groups abroad, like Reprieve, who have long-standing links with civil society groups in both countries, or the ECCHR. These groups can then work strategically to find the best way to approach litigating the case, taking things like existing national law and possible complicity of European governments in the strikes, through intelligence sharing or logistical support, into consideration.

It’s a process built on trust and solidarity that requires diligence, communication and creativity in order to work through the secrecy that surrounds drone programmes and the legal ambiguity behind which their architects attempt to hide. Drone technology has developed at a far greater pace than international law has been able to adapt to regulate its use, and as Andreas Schueller of the ECCHR explains, the way in which drones are being used asks a lot of questions of existing law. This necessitates searching for ways by which the law can be used to enforce responsibility, rather than evade it.

“The first question, a crucial one, is whether a strike in Pakistan happens in the context of an armed conflict or whether it is a counter-terrorism or police operation. That was already a question back in 2010 and I think that it’s still a question today. And even if you’re in an armed conflict, who can be killed, who can be a legitimate military target? Is every member or alleged member of a terrorist group a target who you can just kill as you are in war? Or even if you are in war, how do you prove that the person is fighting for your opponent?”

The legal work of the ECCHR and Reprieve is firstly a means by which to give victims of drone warfare the opportunity to hold those responsible for their suffering to account. It is doing just that for Faisal bin ali Jaber, whose brother-in-law and nephew were killed in a US drone strike in Yemen in 2012. But tied to that is the aim of influencing the answers being given to these questions. What constitutes an imminent threat or a proportional response can be interpreted broadly or narrowly, and the way courts lean set legal precedents that can have a real impact for people on the ground.

But as the trail of responsibility for drone strikes leads back to political leaders, the difficulties in pursuing justice for those affected by them is often compounded by diplomatic and political considerations. Success in court, or even getting there, is never guaranteed, but according to Schueller, it is nonetheless crucial to push the matter by legal means to try and influence decision makers at the political level.

“One of the objectives is to change law,” Schueller says, “or to bring more legal standards into the discussion around counter-terrorism operations and the use of armed drones. For that you need to convince others with legal arguments.”

But although changing the law to regulate the use of armed drones might be a goal, it’s not all that is at stake.

“These cases are extremely difficult, and whether we have success in court or not is very often unpredictable or unlikely. So victims know we might lose the case in court but also that there’s much more around the cases. They provide opportunities for public advocacy and the chance to change something at that level.”

In isolation, national, regional and international law can only do so much to limit human rights abuses, including those that follow from the use of armed drones. Drone programmes are political programmes, carried out in the name of US, UK, Israeli citizens, among others. Raising awareness amongst the people of what is actually being done by governments in their name is a further part of the work that needs to be done to combat them.

This kind of public advocacy is also another element of Reprieve’s work.

“We investigate, that’s one of our primary methods,” Higham explains, “trying to understand narratives and develop evidence of human rights abuses when they happen. Then we also work on education and do a lot of media work.”

To a certain extent this work has been successful in fostering a more critical attitude to drones amongst the wider public, which, as Higham outlines in relation to the US programme, has had some results.

“In the early years of the drone programme it was completely non-transparent, covert and clandestine. There was very little information other than what investigative journalists or lawyers or NGOs were able to find out about what was really happening. We’ve come a long way from no one even acknowledging that the programme was taking place to Obama acknowledging that there have been a certain number of civilian deaths as a result.”

Those admissions, made by Obama in a 2013 speech announcing new guidelines for the use of drone strikes outside areas of active hostilities, can be seen as a step forward, but they also reinforce the need for public dialogue about the issue.

Obama conceded that there had been civilian casualties as a result of the US drone programme, but the number of deaths he was willing to take responsibility for fell far short of those documented by independent organisations and investigative journalists. Where admissions of the use of armed drones have been made by governments, with another example being those made by the then British Prime Minister David Cameron in 2015, they have invariably been shaped to hide how these programmes truly work.

In his statement Obama claimed that drone strikes were only taken when there was “near-certainty” that no civilians would be killed or injured. He repeatedly described drones as “precision” weapons and declared drone strikes to be completely “legal”, “proportional” and “just” in a situation of war. These claims were based on the broadest interpretations of international law possible and stand in clear contradiction to the facts as they have been revealed. Nevertheless, the speech continues to reflect the dominant dialogue surrounding drones in the west. It is this dialogue that has been largely responsible for shaping public opinion to drone use. As Higham highlights, continued time and effort have to be put into reinforcing the reality of drone warfare, so as to prevent it from being overwhelmed by myth.

“The technology gives the illusion of being able to fight these very precise, very specific, very targeted battles, when we know from investigations that isn’t actually the case.

A policy like the drone programme is a terribly blunt instrument. You’re starting to see where it is used in countries like Yemen that it is not only causing huge loss of life but is also proving extremely ineffective.”

“The technology gives the illusion of being able to fight these very precise, very specific, very targeted battles, when we know from investigations that isn’t actually the case. – Kate Higham (Reprieve)

As Dorsey and the work of PAX, underline, it is crucial to emphasise the ineffectiveness of drones in countering terrorist threats, which pose real and immediate danger all over the world.

“The fact is that we do face threats in Europe and beyond, and we have to find a way to counter them. But what is a long-term strategic way to do so?”

Besides working at PAX, Dorsey formerly lead the European Forum on Armed Drones, a coalition of 25 organisations and around 80 individuals working to halt the abusive use of drones. PAX is one organisation within the forum trying to engage governments in meaningful dialogue about the issue. She highlights five key things they are trying to bring governments around to: the articulation of clear policies for the use of drones; prevention of complicity with regimes abusing them; public transparency around their own actions; mechanism to provide redress for those affected by drones; and regulation of the development and exportation of the technology. If honestly implemented, the five elements might go someway to curbing the abuses of drones. And, if connected with other forms of activism and organisation, it may be able to curb the forgetfulness of the key questions surrounding drone use, namely how we respond to the threat of terrorism, and how we value the lives of those on the other side of currently existing borders.

In trying to bring these questions into the conversation around drones, Reprieve and the ECCHR provide those affected by the strikes with a platform to speak to those responsible for carrying them out, as well as those that voted them into power. And example is seen in the testimony of Saleh Mohsen al-Ameri, whose daughter and grandson were killed along with 23 other civilians in the drone strike carried out by the US in Yemen in January 2017, the first under the Trump administration.

Such testimony can help dispel the myth of drones as sleek, supremely effective means of waging war, and of their victims as a homogeneous, and thus dehumanised, group of terrorist insurgents. This is something Dorsey outlines.

“There’s a public disconnect with this war because it’s something else, something we don’t see. We don’t have the empathetic connection with the victims. There’s a distance. That’s what we’re up against from a civil society point of view. We have to challenge those perceptions and we’re trying to do it at every level we can.”

The fight against drones has to be carried out on an immediate and, as Schueller also adds, multi-dimensional level.

“People should always demand that legal demands are broadened and respected by all states, that would be a beginning. But even then, drones could still be used under certain circumstances. The overall objective is to challenge responses to terrorism, and that’s a political response or decision – how to react to terrorist attacks, how to deal with terrorist groups growing and recruiting more people. It’s not something that can be done by military means and waging war in different regions of the world. It’s counter productive and can’t provide a stable solution. But that’s a political decision, not a legal decision.”

In order to bring about positive change in society we need to be able to deal with facts as they exist on the ground. Drone technology is here to stay, and should only be expected to develop in the years to come, with smaller, stealthier, more autonomous systems on the horizon. The decisions that lead to the worst abuses of the technology, to double-tap strikes, the killings of civilians and children, the injuring of thousands, the destruction of communities and rural infrastructure, the creation of conditions of constant terror and psychological instability, are political decisions. Strategic litigation is proving one effective means of combating them, as is engaging with politicians and public advocacy. The potential of the work of PAX, Reprieve and the ECCHR, however, seems to lie in no small part in their coordination, solidarity and place within a wider, multi-faceted network, which allows them to avoid seeing drone warfare in strictly legal, military, or counter-terrorism terms, but to identify drone strikes as political strikes founded on political ideologies that value certain lives more than others. Their collaboration reinforces the idea that no one tactic is supreme in the struggle for social change, demonstrating instead that many are legitimate. They might give us some hope that the way drones are being used today might not have to be the way they are used tomorrow, and that overwhelming facts on the ground that stand in the way of radical social change can be overcome.

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The Right to Truth in Northern Ireland: Power, Justice and Accountability

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“These are rights not privileges” Credit: Pat Finucane Centre

This article was originally published by Novara Media.

On 23 December 2014 the Stormont House Agreement was published, marking the conclusion of 11 weeks of talks between the Northern Ireland Executive and the governments of the UK and the Republic of Ireland. The talks had aimed to resolve long-standing problems in Northern Ireland, including its so-called legacy issues.

These refer to the continued impunity surrounding human rights violations committed during the The Troubles, the conflict which erupted in Northern Ireland in the late 1960’s. In particular, they refer to the estimated 200,000 family members left bereaved by the 3,600 killings which took place during the period, and their attempts to seek justice.

The Stormont House Agreement laid the groundwork for the creation of the Historical Investigations Unit (HIU), a would-be independent body tasked with taking forward investigations into Troubles-related deaths. It would take over the work of two separate bodies: the legacy branch of the Office of the Police Ombudsman for Northern Ireland and the Historical Enquiries Team. The legacy branch of the Office of the Police Ombudsman is currently tasked with investigating allegations of police involvement in killings during The Troubles. The Historical Enquiries Team was a stand-alone unit within the Police Service of Northern Ireland (PSNI) created to investigate unsolved murders from the period. It was closed in September 2014 as a result of Department of Justice budget-cuts, partly due to financial penalties imposed by the UK Government on the NI Executive for its failure to implement heavily criticised welfare reforms.

Following the Stormont House Agreement, the HIU was to be “victim centred” (section 31) and endowed with “full policing powers” (section 36). Importantly, it was to be empowered by the UK Government’s commitment to “make full disclosure” of all documents and information relating to the body’s investigations (section 37). This would enable it to comprehensively consider outstanding cases before submitting them to the Director of Public Prosecutions (PPS) for review and potential prosecution. Its formation envisaged bringing the UK in line with jurisprudence surrounding Article 2 of the European Convention for Human Rights, which protects the right to life. Article 2 has been steadily expanded as a result of determined judicial activism at the European Court of Human Rights (ECHR),whose jurisdiction the UK remains under for the time being. As a result, a positive obligation rests on states to ensure independent, effective, prompt and transparent investigations into killings committed by state actors, or in circumstances suggesting state collusion.

However, more than two years on from the Stormont House Agreement and in spite of renewed talks aimed at hastening its implementation, the HIU has yet to come into existence. 

That the HIU has not yet been formed can ostensibly be deemed the result of a continuing dispute between the UK Government and Sinn Féin, the main political party representing nationalist communities in Northern Ireland. The dispute centres upon section 37 of the Stormont House Agreement, which while committing the UK Government to making full disclosure of documents to the HIU, simultaneously opened the door for disclosure to be limited on grounds of national security, stating: “In order to ensure that no individuals are put at risk, and that the Government’s duty to keep people safe and secure is upheld, Westminster legislation will provide for equivalent measures to those that currently apply to existing bodies so as to prevent any damaging onward disclosure of information by the HIU.” Sinn Féin oppose the inclusion of any clause in the HIU’s founding legislation that might allow the UK Government to censor information about Troubles-related deaths before handing it over to the HIU, arguing that it would undermine the ability of the HIU to carry out proper investigations.

As a result, relatives of victims killed on all sides during The Troubles, with the help of human rights lawyers and organisations such as Relatives For Justice, have continued to seek justice through the only means left open to them: the PSNI’s Legacy Investigation Branch and the Director of Public Prosecutions.

The Department of Legacy and Justice at the PSNI was established in February 2016. Its Legacy Investigation Branch (LIB), which was formed to replace the Historical Enquiries Team, is currently investigating 1,118 killings which took place between 1969 and 2004. On the basis of its investigations, it submits cases to the Director of Public Prosecutions who then decides whether the cases merit prosecution or not. Human rights lawyers are also engaged in preparing legacy-cases for submission to the Public Prosecutor.

The LIB has faced criticism from human rights organisations regarding its independence. A Freedom of Information request in 2015 revealed that 23 out of the Branch’s 53 staff were formerly members of the Royal Ulster Constabulary, raising questions about a potential conflict of interest. The LIB also faces serious issues of funding, with the UK Government refusing to improve its over-stretched budget.

The DUP, the main political party representing unionists in Northern Ireland and the largest party in the State following its recent snap-election, has repeatedly accused legacy investigations of being skewed against “deaths attributed to the State”, in favour of paramilitaries. The party claims that although 90 percent of killings during The Troubles were carried out by paramilitaries, the emphasis of legacy investigations is nonetheless being placed on the alleged 10 percent committed by State forces.

The overwhelming evidence of collusion between the UK military and intelligence services with loyalist paramilitaries during The Troubles casts doubt over this stance, yet it has been reinforced the Secretary of State for Northern Ireland, James Brokenshire – “Yes, I do have some concerns about imbalance within the system” – the Prime Minister, Theresa May – “I think it is absolutely appalling when people try to make a business out of dragging our brave troops through the courts” – as well as Conservative MPs in the House of Commons.

On 22 February 2017, Julian Lewis, MP for New Forest East stated, “… people are starting to use the same techniques in Northern Ireland against them [ex-military] as were used against veterans of Iraq”, and called for a statue of limitations which would prevent “the prosecution of veterans to do with matters that concerned prior to the date of the Belfast [Good Friday] Agreement.”

In January 2017, Sir Gerald Howarth, MP for Aldershot and former minister at the Ministry of Defence, called on the government to “… protect the interests of former British soldiers, currently being charged by the Sinn Féin supporting Director of Public Prosecutions of Northern Ireland, with murder for events which took place 40 years ago.”

Similarly, in December 2016, Sir Henry Bellingham, MP for Norfolk, whilst speaking at a debate on legacy issues, claimed, “We cannot simply revisit cases from 42 years ago and try to reinterpret them through the prism of the 21st century, with its emphasis on human rights.”

With the support of the British tabloid press, who claim the existence of a Sinn Féin orchestrated “witch-hunt”, this pressure increased when ex-British Army soldiers formerly deployed in Northern Ireland marched on Downing Street on 28 January 2017. Subsequently, in its report of 24 April 2017, the House of Commons Defence Select Committee, made up of 11 MPs: 5 from the Conservative Party, including Julian Lewis, the committee’s chair, 4 from Labour, 1 from the SNP and 1 from the DUP, recommended that the next UK Government enact, as a matter of urgency, a statute of limitations covering all Troubles-related incidents involving the Armed Forces which took place before the signing of the Good Friday Agreement in 1998.

A guiding line of this narrative is the Conservative Party’s repeated assertion of “the danger of seeing the past rewritten,” yet this is undermined by the facts. The LIB is currently investigating 1,118 Troubles-related killings. 530 of these are attributed to republican paramilitaries, 271 to loyalists, and 354 to security forces, with 33 undesignated. In other words, cases relating to the security forces make up roughly 32% of the LIB’s workload. The DPP, meanwhile, which receives around 40,000 cases per year, has taken the decision to prosecute 12 Troubles-related cases since the current Director was appointed in November 2011. Of these 12 cases, 7 have been linked to republican paramilitaries, 3 to loyalists, and 2 to the military. Cases are only taken forward for prosecution if the evidence is sufficient to provide a reasonable prospect of conviction and prosecution is in the public interest.

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Statistics on killings during Troubles Credit: BBC

Impunity is a core element in the abuse of power. Attempts to extend it are attempts by the powerful  to expand the basis upon which they can act without accountability or fear of reprisal in the present and the future. When Theresa May, James Brokenshire and the DUP claim that the past is in danger of being rewritten, they are serious. They mean that justice for the oppressed is coming closer to finding its place in the picture of the past and changing the dynamics of power in the present. Through their determined judicial efforts, aided by human rights lawyers and non-governmental organisations in Northern Ireland, family members of those killed during The Troubles threaten to set a precedent that would undermine the way in which the UK Government exercises power, particularly through the British military and intelligence services, both within the UK and abroad.

The UK Government has attempted to block every path that could lead to historical justice in Northern Ireland. There is a commitment to making full disclosure of documents to the HIU in the Stormont House Agreement, however limitations to full disclosure has been built into these processes. This is compounded by the refusal to release extra funding for the PSNI whilst the Agreement remains unimplemented, the criticism of the work of the PSNI’s legacy branch, the attempts to to undermine the Director of Public Prosecutions in Northern Ireland and the targeting of human rights lawyers for slander and intimidation. In doing this, the UK Government has provided clear insight into its stance on accountability and justice when it comes to human rights violations committed in its exercise of power: neither will be tolerated.

This approach may give little hope to victims and survivors of crimes committed during The Troubles; however, they continue to fight for justice, accountability and a change in the orientation of power, and as the Derry-based Pat Finucane Centre recently outlined, they have no intention of going quiet: “Your government is waiting for us to die off but our families will not go away. We demand a fully independent HIU and implementation of the other legacy proposals. All bereaved families have a right to truth, and to have their proposals on how to achieve that right respected. These are rights, not privileges.”

Universal Jurisdiction and the Potential of Radical Law in Ireland

On 13 September 2016, a criminal complaint was submitted to Dublin’s District Court by  a Bahraini-born British citizen. It was timed to coincide with a conference of international prosecutors taking place at the Convention Centre in Dublin, and the arrival of the Bahraini Attorney General, Ali Bin Fadhul Al-Buainain, in the country.

The complaint accused Al-Buainain of aiding and abetting torture in Bahrain. In particular, it accused him of being ultimately responsible for the torture of Jaafar Al-Hasabi, a political activist, following his arrest at Bahrain International Airport in 2010.

Al-Hasabi, whose arrest came amidst a crackdown on pro-democracy activists in the country prior to the popular uprisings of early-2011, was held in detention for six months, with his time in prison extended by Al-Buainain, in his role as Attorney General, twice. While detained, he was beaten, blindfolded, threatened, subjected to electric shocks, deprived of sleep and held in stress positions. He was released without charge in 2011.

In Ireland, he was hoping to rely on a rarely used principle of international law to see justice done.

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Jaafar Al-Hasabi at the Criminal Courts in Dublin (Credit: Global Legal Action Network)

Universal jurisdiction is a potentially radical legal weapon. At its best, it can allow victims of some of the worst crimes, abuses and attacks on human dignity to initiate ‘bottom-up’ judicial investigations into crimes perpetrated against them. It allows them to do this outside of the country in which the crimes took place.

Its roots can be traced back to Ancient Rome and the idea that laws might exist which are common to all mankind, as well as the Enlightenment conception of right and wrong as universally definable. A key part of the idea today is the thought that crimes which violate human dignity affect the entire world, and that we are all responsible for stopping them.

Through gathering testimonies, documenting and protecting evidence, compiling criminal complaints and submitting them to national prosecutors, victims and survivors of systematically orchestrated crimes including genocide, killings, kidnappings, torture, enforced disappearance, rape, sexually slavery, and racial and cultural violence can use universal jurisdiction as a legal pressure point in the battle to crack the stare of impunity often faced when those who commit these crimes hold power in victims’ home countries.

It also encompasses the opportunity for groups of victims, either independently or with the help of ordinary individuals, non-governmental organisations and human rights lawyers, to petition courts to shut down ‘safe-havens’ for political dictators, repressive military leaders and war lords fleeing justice.

It allowed British police to detain the Chilean dictator Augusto Pinochet on the basis of an arrest warrant issued in Spain for crimes committed in Chile, and for a Spanish court to prosecute the former Argentinian naval officer Adolfo Scilingo for his role in mass killings and arbitrary detentions during the “dirty war” conducted by the Argentinian military regime in the 1970s. It opened the door for survivors of the brutal regime of the Chadian dictator Hissène Habré to pursue him in courts in Senegal and Belgium before eventually bringing him to trial in Chad, and enabled the nazi war-criminal Albert Eichmann to be tried in Israel for crimes committed before it had come into existence as a state. It has even markedly reduced the size of George W. Bush’s world.

And it was recently debated in the Dáil, as the Universal Jurisdiction of Human Rights Bill, introduced by Mick Wallace in April 2015.

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Protestors in London in 1998 demand Pinochet be brought to trial (Credit: Nuremburg Human Rights Centre)

At least 147 countries can exercise some form of universal jurisdiction. As things stand, Irish courts can do so in two limited situations.

An outline for the first was drawn in September 1992, when Ireland signed up to the United Nations Convention Against Torture. The Convention places an obligation on the State to detain suspected perpetrators of torture when they come into the country and to extradite them for prosecution or prosecute them in Ireland. They must do so regardless of where the crimes are suspected to have been committed, and irrespective of the nationality of the accused or whether an Irish citizen was affected by the crimes. The obligation also extends to those who have aided or abetted torture. The Convention was incorporated into Irish law in 2010 through the Criminal Justice (United Nations Convention Against Torture) Act, with sections 2 and 3 explicitly providing for universal jurisdiction.

The second situation came about on 1 June 2002, with the coming into force of the Rome Statute and the creation of the International Criminal Court (ICC). The ICC was given the power to prosecute genocide, war crimes and crimes against humanity committed in any country that signed up to the Rome Statute. The affects of its formation were made tangible in Ireland in 2006, through the International Criminal Court Act. This granted Irish courts jurisdiction to prosecute some of the offenses falling under the mandate of the Court, namely war crimes as prescribed for in the Geneva Conventions, even if they are committed outside of Ireland and have no direct connection with an Irish person.

In spite of this, the potential of universal jurisdiction has not been realised in Ireland.

The Dublin District Court rejected Al-Hasabi’s criminal complaint, side-stepping its obligations under the UN Convention Against Torture by citing a lack of evidence to connect Al-Buainain to the crimes. And, on 30 March 2017, Wallace’s Bill was defeated, with Fine Gael and Fianna Fáil voting against it being given a second reading.

When the Bill was debated in the Dáil on 9 March 2017, Wallace argued that its enactment would send a clear message as to Ireland’s stance on impunity and justice in the midst of an increasingly repressive geo-political environment characterised by a growing prevalence of war, the entrenchment of dictatorial regimes and growing inequality.

He claimed it would be a step away from the State’s hitherto underlying principle when defending human rights, as demonstrated by the State’s close and strengthening ties with serial human-rights violators such as Saudi Arabia and the UAE, chiefly that “murder, death and destruction are of no consequences when weighed against economic imperatives.”

He was supported by David Cullinane of Sinn Féin and the Independent TD Clare Daly in arguing for the necessity of specific legislation on universal jurisdiction to better define the conditions under which it might allow criminal proceedings to be opened in Ireland, and the grounds on which the refusal to open them might be justified, with Daly stating: “If there is a weakness in universal jurisdiction legislation, it is that political considerations can, and often do, override the universal and fundamental principles and the aims it attempts to uphold. That is why the Bill is being moved.

The Bill would have expand the wording of section 7 of the International Criminal Court Act from: “Any person who commits genocide, a crime against humanity or a war crime is guilty of an offence” to: “Any person, whatever their nationality and wherever in the world, who commits a crime against humanity, a war crime or genocide, is guilty of an offence.” This would have given Irish courts the power to prosecute irrespective of the perpetrator’s home country having signed and ratified the Rome Statute or not. In doing so, it would escape one of the Court’s greatest flaws. To date, 124 states have signed up to the Rome Statute, but, in terms of human rights violations, some important ones have not, including China, Russia, the United States, India, Israel, Turkey, Saudi Arabia and the majority of the Central-Asian bloc, all of who stand outside its jurisdiction as a result.

The Bill would also have granted Irish courts jurisdiction over crimes against humanity and genocide, which section 12 of the International Criminal Court Act currently keeps out of their reach.

The Minister for Justice, Frances Fitzgerald, was absent for the debate, so the Minister at the Department of Agriculture, Food and the Marine, Andrew Doyle, spoke on behalf of the Government, opposing the Bill.

He explained its refusal to support with reference to the opinion of the Attorney General that it would be “constitutionally unsafe” to go ahead with it in its current form without a “widespread and thorough review of international law”, on the basis of Article 29 of the Constitution, which holds that Ireland must follow “generally recognised principles of international law” in its conduct with other States.

Doyle went on to state the view of the Department of Foreign Affairs and Trade that “it would be problematic to take universal jurisdiction in this way as it would not be consistent with the approach generally taken by other states…”

The conservative approach adopted by the Government is the kind often seen when it comes to universal jurisdiction.

The tool is deemed politically sensitive, potentially de-stabilising, and diplomatically dangerous, with political leaders, usually covered by immunity whilst in office, fearing they will be met with reprisals for their acts come the end of their term.

As a result, where specific national legislation providing for universal jurisdiction is put in place, it commonly frames it in the narrowest terms possible, packing itself with obstacles for victims and survivors, as potential litigators, to overcome.

This is now the case in Belgium, which had taken a lead role in the development of universal jurisdiction following the enactment of a broad national law in 1993, but which repealed it in 2003 under pressure from the US and others, and replaced it with a much weaker one.

However, this is not the only trend. Several countries have taken a different approach to universal jurisdiction, most prominently France, Luxembourg, the Scandinavian countries, Argentina, Senegal and Germany, where the capacity for universal jurisdiction investigations was increased in 2009, and a case has recently been submitted against high-ranking members of the Assad-regime by Syrian victims of war crimes and crimes against humanity.

In arguing that the Bill should not be moved forward because doing so would have necessitated an analysis of a complex part of international law, and thus implying that it did not merit the time or resources the analysis would require, the Government showed its true colours when it comes to human rights and impunity. An analysis of the state of the relevant international law was actually carried out by Amnesty International in a submission made to the Government during the preparation of the International Criminal Court Act, in 2003. They found there to be strong arguments not only that universal jurisdiction for genocide and crimes against humanity is part of international customary law, but that a duty is owed by States to the international community to ensure that these crimes do not go unpunished. Since then, the application and scope of universal jurisdiction has only increased.

At the 66th Session of the UN General Assembly, before a Committee established to examine the use of universal jurisdiction, Nuala Ní Mhuircheartaigh, of the Department of Foreign Affairs and Trade, stated, “The technical aspects of our work should not obscure in our minds the reality that universal jurisdiction may often be the last defence against impunity.” These “technical aspects” have now been used by the Government as a shield to stop clear path for universal jurisdiction’s application in Ireland being put in place.

The Universal Jurisdiction Bill may have been halted by the Government, however it should get us thinking about ways in which we can turn existing instruments, such as international law and the national courts, into weapons to circumvent the intransigent conservative ideology of Irish politics, and (re)empower the locally and globally disenfranchised.

Refusal to Submit: The Repression and Resistance of Indigenous Activists in Honduras

This article was originally published by ROAR Magazine.

Let us wake up! Let us wake up, humankind! We’re out of time. We must shake our conscience free of the rapacious capitalism, racism and patriarchy that will only assure our own self-destruction.

These are the words of Berta Cáceres, the community organiser, human rights defender, environmental activist, indigenous Lenca woman, leader and rebel who was shot dead one year ago, on 3 March 2016, by unidentified gunmen at her home in La Esperanza, the capital city of the department of Intibucá, in south-western Honduras.

Berta was a co-founder of the Consejo Cívico de Organizaciones Populares e Indígenas de Honduras (COPINH), an organisation fighting neoliberalism and patriarchy in Honduras and working for respect of human rights, and the rights of indigenous peoples in particular. She was a long-term opponent of internationally funded exploitative development projects in indigenous territories in Honduras, such as the Agua Zarca hydroelectric dam, set to be built on the territory of the Lenca people in the Río Blanco. Her name had been on a hit-list of social and environmental activists given to a US-trained specialist military unit in Honduras months before her death. Recent information leaked from court proceedings suggest a leading role was played in her assassination by Honduran military intelligence services.

The killing of the celebrated indigenous activist led to wide-spread and sustained coverage in the Honduran, Central American, and international media. In its aftermath, eight people have been arrested, including employees of the Agua Zarca dam and current and ex-military officers, however, no convictions have materialised and the intellectual authors of her assassination remain untouched. Serious failings in the investigative process, including the failure to call on the sole eyewitness of the killing to identify suspects, have held back any movement towards justice for Berta’s family, community, or her colleagues in COPINH. Similarly, the wide-spread outcry of indignation at Berta’s murder has not resulted in any steps towards greater protection for the indigenous peoples in Honduras who are fighting for their right to exist and the safeguarding of the open, communal, sufficient and balanced nature of our environment.

In 2016, at least 281 human rights activists were killed worldwide as a direct result of their human rights-based work. Of these victims, 49% percent were working on issues connected to land, environmental and indigenous rights, such as illegal logging, water pollution, population displacement, attacks on self-organisation of agricultural labourers, and violations of International Labour Organization Convention 169, an international treaty specifically safeguarding indigenous rights to which the overwhelming majority of Central and South American countries are a party. In the same year, 33 deaths were reported in Honduras, an increase from the 17 killings reported in 2015, eight of which were directly connected with land, environmental and indigenous rights.

Repression of environmentally conscious, active and effective indigenous persons in Honduras is long-standing. It is now also systematic, with a wide-array of tactics being employed by State and non-State actors to obstruct, scare and repress activists. On 11 February 2017, an attempt was made to arrest Miriam Miranda, another community organiser, human rights defender, environmental activist, leader and rebel, an indigenous Garifuna woman, on arbitrary grounds, when her car was stopped in La Ceiba, northern Honduras. She was also verbally abused and threatened by police. Miriam was the co-recipient, along with Berta Cáceres, of the Óscar Romero Human Rights Award in 2015. She is the coordinator of the Organización Fraternal Negra de Honduras (OFRANEH), an organisation founded in 1978 to protect the territorial and collective rights of the indigenous Garifuna people, in the context of large-scale displacement of Garifuna communities to make way for tourism projects in towns such as Trujilo along Honduras’ scenic eastern coast. In her case, as in that of Berta Cáceres, the Inter-American Court of Human Rights had directed the Honduran government to take precautionary measures to ensure her safety. Such directives rely on the political will of the State in question, and often prove ineffective, as in the case of Victor Vásquez, President of the Consejo Indígena de Simpunla and the leader of the Movimiento Indígena Independiente Lenca de La Paz (MILPAH), who was shot by military personnel during an eviction of indigenous farmers in Santa María, La Paz, on 18 January 2017, or in the case of his fellow MILPAH member, Ana Mirian Romero, who suffered an arson attack on her home, and has received multiple death threats as a direct result of her work. On 18 October 2016, José Ángel Flores, President of the Movimiento Unido Campesino del Aguán (MUCA), and his fellow MUCA member Silmer George, were targeted and killed in a drive-by shooting in Tocoa, Colón, in the Aguán valley in northern Honduras. The Inter-American Court had requested the Honduran government to implement precautionary measures for José’s protection in 2014, but the State failed to comply. The list could go on; it is constantly expanding. On 20 February 2017, José de los Santos Sevilla, a community leader of the indigenous Tolupán people, who are fighting for their ancestral territorial rights to be respected in the face of industrial-scale logging and mining projects, was shot dead in his home in La Ceiba. These crimes are compounded by almost complete impunity.

The violations perpetrated against those indigenous peoples who speak out and take direct action to counter the dominating narrative of development in Honduras, unequal economic expansion centred around resources exploitation, monoculture, the development of tourism, and unregulated special development regions, have at times been directly linked to the right-wing Government of Juan Orlando Hernéndez and the ruling National Party, who came to power following the USbacked coup d’etat in June 2009, and defeated the popularly-formed LIBRE party in national elections dogged by killings of political figures and LIBRE activists in November 2013. The increase in the ferocity of these violations is occurring alongside massive US aid to the country, which amounted to US$98.3 million in 2016. The release of the aid money is ostensibly conditional on the country satisfying human rights standards, yet has continued unimpeded in spite of the verifiable increase in human rights violations and killings of human rights defenders in the country. A large portion of the financial aid, US$18 million in 2016, has been earmarked for the Honduran military and police services despite their repeatedly reported role in these human rights violations.

As the Honduran government steps up its programme of extractivism, (there are currently 411 granted mining concessions in Honduras, covering an area of 6,630km), and international investment in extractive industries under the guise of development-aid continues, indigenous groups and activists in the country find themselves under increasing pressure. Amidst attempts by the global tourist industry to exploit as-of-yet relatively untouched areas of the Caribbean coast gather speed, and the value of controlling ‘recession-proof’ resources such as water becomes more apparent, they will face further challenges.

Yet in spite of the violence that has been employed against them and the mounting risks they face, indigenous peoples and environmental rights defendersin Honduras continue to organise. Each killing, attack and threat has the potential to fracture links between their organisations and to undermine grassroots movements and activism, yet solidarity continues to grow. In Honduras, indigenous peoples are in revolt. They are fighting for their rights to exist in a system that has no part for them to play beyond subservience. When they refuse this role, they become targets, but they also expose a crack in the wall, because the rest of us can hear them.

Today marks the culmination of a week of action organised by COPINH to mark the one year anniversary of Berta Cáceres’ killing, and to signal their continued indignation at the repression of indigenous communities in Honduras, and intensifying human rights violations in the country. They ask people to join them in the use of the hashtags #BertaVive and #COPINHsigue, to show the perpetrators that this indignation is felt worldwide.