Author: By Paul Rodgers
It’s not that she’s spouting fiery rhetoric of the sort heard during peace protests, climate change camps or anti-globalisation riots. I get no sense that an army of activists is ready to follow her on to the streets, chanting slogans such as “Give us liberty or give us death”. Chakrabarti, 38, is very much part of the establishment, a former Home Office lawyer and member of the board of governors of the British Film Institute who was made a CBE in the Queen’s birthday honours this year.
Indeed, she likes to stress the things that she’s not against. “I’m not anti-American,” she says, twice, perhaps mistaking my Canadian accent. Then a while later: “I’m not anti-police; I’m anti-police state.” She’s not even anti-killing, pointing out that it’s allowed, in tightly constrained circumstances, under the global human rights framework that emerged after the Second World War. But what isn’t allowed, ever, is torture, she says. “It’s unforgivable.”
Hence the latest friction between Liberty and the Government. Britain intervened last month in a case before the European Court of Human Rights which, if it goes Whitehall’s way, would make torture at least excusable if not forgivable. “The British Government is trying to persuade the court that, in the context of deportation, the absolute prohibition on torture shouldn’t be so absolute.” The Government might yet succeed; by the time Liberty and other civil rights groups found out about the hearing, it was too late to get permission to put their arguments to the court.
The case, being heard before 17 justices in the Strasbourg court’s Grand Chamber, was brought by Nassim Saadi, 23, a Tunisian legally resident in Italy. Rome, armed with a promise from the government in Tunis that Saadi won’t be hurt, has been trying to deport him since his conviction on charges of criminal conspiracy and fraud, which he is appealing. His lawyers contend that the Tunisian promise is unenforceable, and that torture is a matter of daily routine in the North African state, where Saadi, the brother of a suicide bomber, has been convicted, in absentia, of terrorism.
“It would reopen the Chahal problem,” says Chakrabarti, referring to a 1996 ruling by the court that the possibility of torture could never be balanced against other issues, such as the threat to national security that a prisoner might pose. Karamjit Singh Chahal, a suspected Sikh separatist, feared he would be tortured if Britain returned him to India. The court agreed. “This is the seminal judgement on deportation to a place of torture,” she says.
The 1996 ruling has had far-reaching consequences. “It led, in a way, to the Belmarsh policy.” Unable, because of the Chahal ruling, to deport people it thought were potential terrorists, the Government instead locked them up, indefinitely, under the legal fiction that they might someday be deported under immigration law. “Then they went to the House of Lords and that lovely man Lord Goldsmith said this is a three-walled prison, because they are free to leave at any time.”
Chahal is also at the heart of the row over “extraordinary rendition” or, as Chakrabarti insists with a call-a-spade-a-spade bluntness, “kidnapping and torture”. Chahal established that it wasn’t enough to say “I’m not torturing anyone”. The state has an obligation to make sure that no one else does it either. Britain’s role in extraordinary rendition ? the “turning of a blind eye” to US flights carrying detainees to countries that practise torture, ? still hasn’t been properly investigated, she complains. “It leaves a bitter taste. If we don’t acknowledge what happened, how do we prevent it happening again?”
The ruling may be the biggest legal weapon in her arsenal, but it is also the cause of her discomfort this morning. It is the last day of her summer holiday but she’s already busy responding to journalists about the fate of Learco Chindamo, the murderer of headmaster Philip Lawrence. And she’s taken time away from her husband and five-year-old son to talk to me. Wearing a moss-green velvet jacket, she sits beneath a bust of Plato in the library of County Hall, the former home of the Greater London Council, now a Marriott hotel. Behind her are oak bookcases stuffed with statute books and encyclopaedias dating back to the 19th century. But it’s the books on the table, between the latte glasses, that are making her feel a turncoat.
“I’m probably the biggest Harry Potter fan over the age of 12,” she says as I pass her one of J K Rowling’s heavier volumes. “Yes,” she says finally, biting out the words with disappointment. “Yes, Harry Potter has tortured someone. That was a war crime.”
That the boy wizard beloved of children and human rights lawyers around the globe should be lumped in with the likes of Saddam Hussein, Pol Pot, Slobodan Milosevic, Voldemort and countless other evildoers is disturbing. But the prima facie case is strong. In Harry Potter and the Goblet of Fire, the delightfully named Mad Eye Moody introduces his class to the three Unforgivable Curses, demonstrating them on spiders for dramatic effect. The first, under the Imperius curse, is made to dance like a puppet on a string, an effect that has no obvious counterpart in the real world. The third is killed outright with Avada Kedavra, an act which might be acceptable to us depending on the circumstances, such as in combat or self-defence. It is the second curse, Crucio, that falls foul of both wizarding and muggle laws, as is evident when Mad Eye’s second spider curls up in excruciating pain and “begins to twitch horribly, rocking from side to side”.
“‘Now these three curses ? Avada Kedavra, Imperius and Crucio ? are known as the Unforgivable Curses,'” Moody tells his pupils. “‘The use of any one of them on a fellow human being is enough to earn a life sentence in Azkaban [the wizards’ prison].'”
The parallel is impossible to miss. “Crucio is proper torture and that fits with article 3 of the ECHR [European Convention on Human rights],” says Chakrabarti. “It’s just wrong.” Yet near the end of The Order of the Phoenix, Potter tries to avenge the death of his godfather, Sirius Black, by casting the Crucio curse against the evil Bellatrix Lestrange. When the curse fizzles, she taunts him: “‘Never used an Unforgivable Curse before, have you, boy? … You need to mean them, Potter! You need to really want to cause pain ? to enjoy it ? righteous anger won’t hurt me for long…'” Potter’s innate goodness seems to have saved him.
Not so in the seventh book, Harry Potter and the Deathly Hallows, which still tops the best-seller lists five weeks after its release. Here, Potter is hiding under his cloak of invisibility when Amycus, a minor henchman of the arch evildoer Voldemort, makes the mistake of spitting on one of the hero’s favourite teachers at Hogwarts, Professor Minerva McGonagall. Incensed, Harry casts the Crucio curse again, and this time it works. “‘I see what Bellatrix meant,’ said Harry, the blood thundering through his brain, ‘you need to really mean it.'”
And McGonagall, who just a little further up the page had been lecturing Amycus on the difference between truth and lies, how does she take this?
“‘… Potter, that was foolish!’
‘He spat at you,’ said Harry.
‘Potter, I ? that was very ? very gallant of you ? but don’t you realise ??’
‘Yeah, I do,'”
And with that, the matter is dropped.
Rowling’s decision to have her hero step across the line she has so clearly drawn between good and evil puzzles Chakrabarti. The Order of the Phoenix, she points out, shows Potter as the victim of an over-authoritarian state; it opens with a kangaroo court appearance and later has him being magically tortured, though not with the Crucio curse. You would think the author sympathetic to Liberty’s stance.
“There is a strong moral tale running through the books,” says Chakrabarti. “But they’re not Bible stories; Harry has all sorts of flaws.” Still, she thinks, the final book should not have breezed over this central ethical issue so lightly. “There could have been more reflection. We want to see more anguish. Even just a passage of guilt, his reflections about using the Unforgivable Curses, would have been a good thing to include.
“And, it wasn’t even the ticking-bomb scenario,” she says. “That’s the big question that is supposed to wobble people like me: ‘But look, it’s a nuclear bomb and Paul is sitting there and he’s gloating that he knows where it is and it’s going to go off in an hour but only if you don’t get the information out of him.'”
I’m still deciding how I feel about being cast as a nuclear terrorist when she makes a surprising admission. “The honest answer to that question ? what would you do ? is ‘I don’t know’. The subsidiary answer is: I might well try to slap him around a bit but I would know I was doing something unforgivable and I would expect the consequences.”
The ticking nuclear bomb situation has never arisen in real life, but it’s often trotted out as an excuse for torture, and has been cited, in milder forms, by US soldiers surveyed in Iraq. There are other defences, too, all of them earning Chakrabarti’s contempt. One proposed by the White House is that it’s not really torture unless it causes organ failure. The upshot is that, in the real world as in fiction, torture can be condoned if it is used by the good guys. The problem with that reasoning, says Chakrabarti, is that members of al-Qa’ida see themselves as being on the side of righteousness, too.
You might think that the threat of terror is the great weakness for a civil libertarian. But Chakrabarti is giving no ground. “They’re cheapening everything we’re supposedly promoting in the world. You cannot torture people in democracy’s name,” she says, adding: “They are recruiting the extremists and terrorists. We are the people capable of having the argument with the angry hothead who says, ‘Look at these pictures of how my Muslim brothers are being treated in Guantanamo and Chechnya.’
“Like lots of British lawyers, I’m firmly of the view you’re better sticking to the crime model than the war model,” just as Britain did when faced with republican terrorism in Ireland, says Chakrabarti. “The hawks should object to [the war model] as well, because it allows criminals to call themselves soldiers.”
She remains optimistic that support for civil liberties will rise again. But her view of the future of political violence is bleak. “Terrorism will never be vanquished completely,” she says, “The ‘war on terror’ goes on for ever.”
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