Human Rights Hypocrisy — Special Rapporteur for Torture Edition

by Kevin Jon Heller

PassBlue published a very disturbing article yesterday about nominations for five vacant UN Special Rapporteur positions. According to the article, although the President of the Human Rights Council, South Korea’s Choi Kyonglim, has endorsed four of the selection committee’s five first choices, he has refused to endorse its first choice for Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Karim Khan QC, in favour of the committee’s second choice, Nils Melzer. There is no question Melzer is a wonderful choice — he’s an accomplished scholar, has vast practical experience with the ICRC, and is a great person. The article suggests, however, that there may be a darker reason for Choi not endorsing Khan — Khan’s defence work at various international tribunals:

Khan has worked in the prosecutor’s office of the international criminal tribunals for the former Yugoslavia and Rwanda, two courts created to try perpetrators of grave crimes in the Yugoslav wars and Rwandan genocide of the 1990s. He has also represented victims in the Extraordinary Chambers of the Courts of Cambodia formed to prosecute culprits of the Cambodian genocide of the late 1970s.

Khan also has a rich history of defending suspects of mass atrocity crimes. His current clients include William S. Ruto, deputy president of Kenya, who until April was on trial at the International Criminal Court in The Hague, charged with crimes against humanity. Khan has also worked on the defense of Jean-Pierre Bemba, a former vice president of the Democratic Republic of the Congo. In June, Bemba was found guilty by the court of war crimes and crimes against humanity.

One academic critic, based in Britain, who spoke on condition of anonymity, said that Khan had not showed enough dedication to protecting victims, given his defense of alleged criminals. This work, the person said, could clash with Khan’s role as special rapporteur if he had been nominated by the council president, should accusations be made against Ruto or other potential clients of his. (The Ruto case was vacated because of witness interference, but could be reopened if new evidence surfaces.)

In his application for the UN role, Khan wrote that “having acted for all sides in cases where torture is alleged, not only helps demonstrate my independence and ability to be impartial, but I believe that it can lend additional credibility to my role as Special Rapporteur.”

The case involving Ruto was deeply marred by witness intimidation, according to Fatou Bensouda, the chief prosecutor of the International Criminal Court, and judges who heard the case. Fergal Gaynor, who represents victims in the court’s case against Uhuru M. Kenyatta, the president of Kenya, has also questioned the extent of Khan’s commitment to justice for victims of violence.

“Bribery and intimidation of witnesses can and does collapse legitimate cases,” he said. “It is fair to question whether Mr. Khan appreciates how interference with witnesses can completely deprive torture victims of the ability to know the truth about the crimes committed against them, to have the wrongfulness of the torture publicly acknowledged, and to receive fair compensation for that torture.”

In an interview in 2014, Khan said of witness problems in the case, “I’m not sure witnesses have been and are being intimidated in this case. As I said, I have prosecuted and defended and represented the victims, and every single case I’ve been involved in has been headlined by ‘This is unprecedented witness intimidation’ and ‘unprecedented’ this and that.”

John Washburn, convener of the American Non-Governmental Organizations Coalition for the International Criminal Court, based at Columbia University, said the issue was “whether Khan’s actions as Ruto’s defense counsel displayed values and judgments that reflect on his suitability as rapporteur.”

The article is careful to avoid directly attributing these ideas to Choi. But given that Khan is the only first-choice candidate Choi has refused to endorse, it seems highly likely that Khan’s defence work is the reason. If so, that’s shocking. Defending individuals accused of serious international crimes is not inconsistent with human-rights work — it is human-rights work. It’s not an accident that Art. 14 of the ICCPR protects a defendant’s right to a fair trial. After all, show trials are a hallmark of repressive states, from Bangladesh to the United States.

This should be Human Rights 101. For some reason, though, the same “human-rights activists” who condemn unfair domestic criminal trials — special courts in Bangladesh and military commissions in the United States alike — fall silent when it comes to international trials. The tacit assumption — which should embarrass anyone who claims to care about human rights — is that an effective defence is unnecessary at international trials, because investigators always do a good job, the OTP is always motivated by a profound love of justice, judges are always infallible, and defendants are always guilty. All of those things are sometimes true. Perhaps even usually true. But not always. Sometimes an international tribunal doesn’t do its job and an innocent person is prosecuted. And it is precisely the job of skilled advocates like Khan to make sure those defendants are not convicted — or convicted only for crimes they actually committed.

I would say this about any defence attorney. (And of course I’m biased, having been one myself.) But it’s particularly appalling that Khan would be vilified for doing his job — anonymously, of course, because the British academic quoted above is a coward who wants to ensure his slander has no professional consequences. (As if anyone really cares what we academics think!) Khan has a sterling reputation as a defence attorney, no matter how contentious some of his trials might have been. I have never seen anyone claim — nor is there even the slightest evidence — that Khan was involved in the Kenyan government’s misconduct in Ruto. And I say that despite being completely convinced that the Kenyan government did, in fact, commit serious misconduct. The comments by Gaynor and Washburn are thus completely misplaced — and all too typical of the tendency, possessed by people who should know better, to conveniently forget that the right to a defence is a human right. But at least Gaynor and Washburn have the courage to attach their names to their opinions!

Finally, although it shouldn’t matter, it is worth remembering — as the article points out, to its credit — that Khan had a distinguished career as an international prosecutor before moving to the other side of the courtroom. He even has experience representing victims. Does he suddenly forget the importance of victims whenever he is retained to act for a defendant? Or does he simply understand that the rights of defendants are no less important than the rights of the other parties to a criminal trial?

I have no doubt Melzer, whom I’ve had the pleasure to know for more than a decade and think the world of, will make an excellent Special Rapporteur. But Khan would have made a great one, as well — and we are left to simply speculate how skilled Khan would have been at convincing states to cooperate with him, given his rich experience defending senior government officials. I hope, despite how it appears, that Choi preferred Melzer for reasons other than Khan’s work as a defence attorney. But if that is why he bypassed Khan, anyone who cares about human rights — all human rights — should be appalled.

http://opiniojuris.org/2016/09/05/human-rights-hypocrisy-special-rapporteur-edition/

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