Thursday, April 02, 2009

British lawyer leading Sudanese president's int'l defence team says Article 6 of UN Security Resolution 1593 is meaningless

Michel Massih QC, who is leading the Sudanese president’s international defence team, told the London-based Arab News Broadcast that the ICC’s arrest warrant against al Bashir had its own legal problems.

He points out that Article 6 of UN Security Resolution 1593, which authorized the ICC to investigate the situation in Dafur, demands immunity for U.S. officials and citizens being tried by the ICC. This makes the resolution meaningless from a legal standpoint, he argues, because it establishes two standards of justice, one for Americans and another for Sudanese.

Massih also criticized the way the International Criminal Court chief prosecutor Luis Moreno-Ocampo publicized his accusations against the Sudanese president. Massih, who has been practicing international law for 30 years, told Arab News Broadcast, “ I have never heard in my legal career of a chief prosecutor that launches media campaigns against a defendant, regardless of the nature of the charges.”

Source: New America Media, News Analysis, Jalal Ghazi, April 02, 2009 -
Arrest Warrant for Sudan’s President is Well Oiled - copy:
Editor’s Note: Arab countries are outraged over the International Criminal Court’s March 4 arrest warrant for Sudanese President Omar Hassan al-Bashir. According to Arab media, the warrant is motivated by oil, not justice.

Since the International Criminal Court issued an arrest warrant for Sudanese President Omar Hassan al-Bashir on March 4, Arab media have played an active role in challenging the court’s legitimacy and arguing that it is motivated by the quest for Darfur’s untapped oil resources.

Like many Arab media, Al Majallah, an international news magazine, accused the West (namely, the United States, France and Britain) of creating “a destructive political storm” against the Sudanese government immediately after it decided to allow Chinese oil companies to look for oil in Darfur.

According to Al Majallah, the Sudanese government has entered talks with Chinese oil companies and has been trying to impose its control on the region to prevent rebel groups from sabotaging exploration efforts.

Rebel leader Suliman Marjan told Al Majallah that the Sudanese government was using heavy weaponry “to dismantle ambushes that were staged by the rebels who were waiting for Sudanese forces in El Atroun Valley, to prevent them from securing oil areas.” According to Al Majallah, “The Sudanese government sent 300 armored vehicles so that the Chinese oil companies could go to the far north of Darfur.”

While the Sudanese government is eager to help Chinese oil companies secure oil rights in Darfur, rebel leaders backed by the United States, France and Britain want to postpone oil exploration in Darfur until a peace deal is reached.

Al Majallah warned that the tag of war between Western and Chinese companies over Darfur’s oil is threatening the unity of Sudan. China and Russia back the central government in Khartoum and support reaching a local solution to the crisis in Darfur. The United States, Britain and France support the rebel groups and insist on resolving the crisis using Western forces such as NATO.

The Sudanese government fears that the presence of Western forces could eventually lead to the separation of Darfur from Sudan.

Al Majallah also holds Western countries partially responsible for the failure of the peace process in Darfur. By supporting the rebels, he says, the West, which is “concerned that they will lose the war in Darfur,” is encouraging them to “blackmail the Sudanese government and cause a state of permanent war in the region.”

At least one of the main rebel groups in Darfur, the Justice and Equality Movement, was encouraged by the ICC’s decision to reject further negotiation with the Sudanese government.

The group, which had agreed to peace talks only one month before, now calls for regime change. According to London-based Asharq Al-Awsat, the Justice and Equality Movement called on the UN Security Council to introduce an \\\"oil for food\\\" program similar to the one that was used in Iraq under former President Saddam Hussein.

The intended objective of the warrant may have been to undermine the legitimacy of the Sudanese government, but the results were the exact opposite.

Since the ICC issued the arrest warrant against al-Bashir, he has gained unprecedented support from Islamic, Arab and African countries. The African Union, Arab League, Organization of the Islamic Conference and many others back Sudan’s demand that the ICC arrest warrant be dropped.

This support does not necessary reflect al-Bashir’s popularity. Rather it shows their outrage over what is viewed as the ICC’s double standards of justice.

Michel Massih, who is leading the Sudanese president’s international defense team, told the London-based Arab News Broadcast that the ICC’s arrest warrant against al Bashir had its own legal problems.

He points out that Article 6 of UN Security Resolution 1593, which authorized the ICC to investigate the situation in Dafur, demands immunity for U.S. officials and citizens being tried by the ICC. This makes the resolution meaningless from a legal standpoint, he argues, because it establishes two standards of justice, one for Americans and another for Sudanese.

Massih also criticized the way the International Criminal Court chief prosecutor Luis Moreno-Ocampo publicized his accusations against the Sudanese president. Massih, who has been practicing international law for 30 years, told Arab News Broadcast, “ I have never heard in my legal career of a chief prosecutor that launches media campaigns against a defendant, regardless of the nature of the charges.”

Arab foreign ministers who met before the Arab League summit in Doha are \\\"urging all Arab countries not to cooperate with the ICC’s measures.\\\"

In defiance of the ICC, Eritrea, Libya, and Egypt invited al-Bashir to their countries, where he received a hero’s welcome. The Sudanese president was also invited to attend the Arab League summit in Doha, Qatar.
- - -

Note, I have used red to highlight text for future reference. Naturally, I am curious as to why the author of the above report claims that the British government is supporting Sudanese rebel groups. I say, where's Lord Malloch-Brown to defend Britain against such claims? Last I heard, he was helping to organise the G20 (aka G24) summit being held in London this week.  

The following article featuring Michel Massih QC, who is leading the Sudanese president's international defence team, is so interesting that I am copying it here in full, complete with photo.

From The National
The best defence
Last Updated: March 06. 2009 8:30AM UAE/March 6. 2009 4:30AM GMT

Michel Massih QC

Photo: “When I was young,” says Michel Massih, “I saw myself as a defender of the weak against the oppressor.” (Matt Crossick/The National)

Michel Massih has spent much of his 30-year career advocating for clients accused of terrorism and war crimes, but now the consummate defender is leading the charge to prosecute Israel. Alan Philps reports.

In 1966 a thin, bespectacled youth, far from his home in Jerusalem, discovered Speaker’s Corner, a patch of London’s Hyde Park where anyone with something to say can harangue a crowd. He was captivated by the orators – some with years of experience, others having a go for the first time. The next Sunday he returned, found a couple of plastic milk crates to stand on, and began to speak about Palestine. In an instant his shyness disappeared; he found that the hecklers only gave him strength and clarified his thoughts. Soon the largest crowd in Speaker’s Corner was gathered around the gangly Palestinian.

That youth was Michel Massih who, now 59 years old, has become one of Britain’s most experienced criminal lawyers. As is customary at the English criminal bar, Massih has spent much of his 30-year career defending all-comers, from the lowest to the highest – from ordinary clients accused of burglary, money-laundering and murder to members of the Kuwaiti and Saudi royal families who have got into trouble over drugs.

But his real speciality is terrorism trials. As a young lawyer, Massih was instructed to join the team defending Hussein Said, the Jordanian Abu Nidal gunman who shot Shlomo Argov, the Israeli ambassador in London, outside the Dorchester Hotel in 1982. Similar cases followed. Last year, in the trial of the so-called “transatlantic airline plot”, he defended Tanvir Husain, one of the men accused – but not convicted – of planning to blow up airliners in mid-air with liquid explosives. In 2008, he successfully appealed a judgment against a group of young Muslim men who had downloaded extremist material from the internet and were convicted of terrorist offences. As a result of this victory, no one in England can be jailed merely for possessing such material; it has to be shown they intend to use it for violent ends.

Massih’s skills as a defender have also been in demand abroad: He has travelled to the Maldives to defend the then-opposition leader (now president), Mohamed Nasheed, against terrorism charges; he is advising the Syrian government and military officials who are being investigated by the United Nations Security Council over the murder of Rafik Hariri, the former prime minister of Lebanon; and he is advising the president of Sudan, Omar al Bashir, who has been accused of presiding over genocide in Darfur by the chief prosecutor of the International Criminal Court in The Hague.

But in recent weeks, a new preoccupation has seized the advocate’s energy and attention: Massih, the consummate defender, is turning his energies towards prosecution – by trying to find a way to bring Israeli officials and army officers to justice in British courts for war crimes committed in Palestine. He has appeared widely on television to set out the case against Israel and addressed the Royal Institute of International Affairs in London on the law of war crimes. He drafted an open letter, signed by 31 international legal experts, arguing that the Gaza attacks amount to “an act of international aggression and are contrary to international law”.

After so much success in defence, could Massih bring a successful war crimes prosecution against Israel? Indeed, can any European lawyer – and many are trying – achieve this goal, or are their efforts destined to amount to nothing more than a lawyerly public relations campaign?

When Massih was awarded the title of “outstanding criminal lawyer” by the Society of Asian Lawyers last year, the society’s chairman described his style as “aggressive” but tempered with humour. As legend has it, a policeman once fainted under the force of Massih’s cross-examination.

“He’s a hairy, larger-than-life character, spell-binding and immensely intelligent,” said Jocelyn Hurndall, who witnessed Massih performing in court after her son Tom was shot by an Israeli soldier in Gaza in 2003. “He can be mischievous and wicked. He reduces the court to fits of laughter. If he feels that the jury is tired and not paying attention, he will turn to his junior and shout, ‘Tuck your shirt in!’ Suddenly everyone is paying attention again.”

I met Massih over dinner recently in the company of another Palestinian lawyer, and I asked him about his fearsome reputation. His bristling moustache wilted and his face crumpled into a picture of misery. “I’m just an orphan and a refugee,” he said in a pathetic whisper, the lion of the courtroom transformed into Oliver Twist.

His lawyer friend would not let this charade pass unchallenged. “At your age, Michel, most people are orphans.”

“Well I am a refugee. I was uprooted from my home and had to come to England.”

“Excuse me,” responded the lawyer. “You were sent to boarding school in England to complete your education.”

Massih had the last word. “Yes but then came 1967 and my home was occupied and I could not return. So I am a refugee. And an orphan.”

For all his theatrics, there is no doubt that Massih’s Palestinian roots have engendered a strong personal sense of justice – one inspired, until recently, more by concern for the accused than by zeal for prosecution. Even before the loss of his homeland to Israel, he was keenly aware of the injustice of the old Jordanian regime in Jerusalem. “The rich had a free hand to do what they wanted. The poor had no rights at all.” Massih has only ever prosecuted in a British criminal court once in his life; he says he wanted to offer no evidence.

“When I was young,” he says, “I saw myself as a defender of the weak against the oppressor. It was a fantasy that sustained me.”

An early hero of Massih’s was Perry Mason, the defence attorney in a long-running American television series who is always defending a murder suspect. Invariably, Mason finds the chink in the armour of the prosecution and fingers the real murderer. Then his client walks free.

Massih’s Perry Mason moment came in 1997. He was defending a suspect in one of the most gruesome murder cases of the decade. The victim had known that his life was in danger and, when he heard a knock at the door, switched on a tape recorder hidden behind a curtain. In came two people - a woman (the victim’s former lover) and a man, Massih’s client.

The tape recorder captured the sounds of the victim being knifed and breathing his last. Some members of the jury broke down as the tape was played to the courtroom. In this highly charged atmosphere, Massih convinced the jury to clear his client of all charges. The woman was convicted of murder. Shortly after this trial, Massih was appointed Queen’s Counsel, an elevation to the top rank of barristers that is quaintly known as “taking silk”.

There is a long tradition of lawyers taking pride in defending the seemingly indefensible. The most notorious is the Frenchman Jacques Verges, who has made a career of defending terrorists and war criminals, from Carlos “The Jackal” to Klaus Barbie, the Nazi “Butcher of Lyon”. Verges takes such delight in his reputation that he encourages the sobriquet “the Devil’s advocate” and entitled his autobiography Brilliant Bastard. Slightly more circumspect is Ramsey Clark, the former US attorney general, who volunteered his services to defend Saddam Hussein and Slobodan Milosevic.

One Sunday afternoon I met Massih at his home to ask him why he devotes so much energy to defending clients that many people consider terrorists or war criminals, the worst of the worst.

The brilliant dinner party companion was replaced by a sober lawyer. If barristers refused to defend clients with a strong case against them, he explained, there would be no rule of law. “The lawyer would become policeman, judge, jury and executioner.”

Over a cup of tea he explained that the relationship between client and barrister is a complex one. “If a lawyer defends an alleged rapist, that does not mean the lawyer identifies with the crime or the alleged criminal.

“The lawyer’s duty is to examine the evidence against the client, and then to confront the client with the evidence and to indicate the strength of the case. If, despite the lawyer’s advice, the defendant still maintains that he is not guilty, it is the lawyer’s duty to represent him or her fearlessly.”

History clearly shows the need for such principled defenders. In the 1970s, numerous suspected Irish terrorists were wrongly convicted to appease the public clamour for revenge. Since then, such miscarriages of justice have largely been prevented by men like Massih, “fearless” defenders of terrorism suspects. The police have in turn become more professional under the pressure of defence lawyers.

For all that, Massih says there is not “even the beginning of a resemblance” between him – or any British barrister, for that matter – and someone like Jacques Verges. In England, barristers cannot tout for clients in the manner of ambulance-chasing American lawyers or seekers after notoriety like Verges. Barristers, he explains, wait to be “instructed” by solicitors, the lower rank of lawyers who are allowed to open High Street legal offices. The barrister is obliged to accept whatever cases come his way, a “cab-rank” principle designed to ensure that all clients are defended – though barristers can develop an area of expertise, which leads to specialisation. Verges actively courts controversy; Massih has been professionalised into it.

The project that has consumed Massih’s recent efforts is an idea that has lit up the Arab world – he wants to bring the weight of international law to bear on the Israelis for their assault on Gaza. Massih has no time for the angry emotional outpourings in the internet comparing what happened in Gaza to the attempted genocide of the Jews at the hands of Nazi Germany. “This only obscures the facts. What we need is a clear legal argument, and a plan.”

Massih may be just the figure to orchestrate such a plan. In addition to his high-profile defence work, he is a pioneer in the field of serving warrants for violations of international law. Back in the 1980s, a group of veterans of the Palestine Police, the old British colonial force, sought an arrest warrant against Yitzhak Shamir, then the Israeli prime minister, over the assassination of Lord Moyne, a British minister who was shot dead in Cairo 1944 by the Stern Gang, a Zionist terrorist group. Shamir was one of the leaders of the Stern Gang, and the retired policemen wanted him arrested on a visit to Britain.

Massih was instructed to seek the warrant. That application failed, but Massih saw promise in the approach. He was asked to seek more warrants: one against Ariel Sharon – which failed – and two against Shaul Mofaz, the Israeli army chief at the time of the second Palestinian intifada. The first attempt at securing a warrant for Mofaz’s arrest had an effect; when news leaked of the application, Mofaz cut short a fund-raising trip to Britain and fled back to Israel. The second time Massih sought a warrant for the former army chief’s arrest, the British magistrate accepted the basis for the application, but ruled that Mofaz, as a serving government minister, enjoyed immunity. In 2005 a warrant was issued for the arrest of reserve Major-General Doron Almog, who as commander in the Gaza Strip had ordered the destruction of 59 Palestinian homes. On arrival at Heathrow airport, Almog was tipped off about the warrant, and stayed on the plane, returning straight back to Tel Aviv.

While none of this legal activity has led to an arrest, Massih says the legal foundations are clear: the Geneva Conventions Act of 1957 obligates Britain to investigate anyone on British soil who is alleged to have committed a war crime. “I can claim to have opened the door. I looked at the Geneva Conventions Act as a green lawyer and thought there was an angle. Others are doing it in England and in many countries of Europe too.

“It may be difficult to arrest and seize people, but the whole trend of international criminal law is moving towards bringing to justice people who have had power and escaped.”

Will all this activity actually lead to an arrest? There are many who think that lawyers are going round in circles to give the impression of progress but that, in the end, no European country would ever put a retired Israeli general or defence minister on trial. Massih, on the other hand, believes that the law is full of surprises – a fact certainly endorsed by his career. The net is tightening, he says, and Israel will be forced to uphold international law.

“What concerns me is to end the impunity that Israel has enjoyed. The field of freedom for Israel will narrow. More and more of these warrants will be applied for. And people will become much more aware of the difficulties of waging war in this unlawful way. Frankly, all you need is one case – one case which sticks.”

Massih’s advocacy of bringing Israel to justice is both professional and personal. While he has been “instructed” as a barrister to pursue various warrants against Israelis over the years, his recent television appearances calling for legal action against Israel have been acts of his own volition. One might ask: If Massih is so outspoken about prosecuting Israel for its alleged war crimes in Gaza, how can he he help defend the president of Sudan, who is accused of war crimes in Darfur?  “There is no double standard in my accepting a brief for Sudan,” he says. “This is not something I sought out. I was instructed by a major international law firm. It is the same principle that applied to my application for arrest warrants against the Israelis; this is an area within my competence.”

Since Massih is, by trade, just a lawyerly cab driver waiting in a queue for clients that match his skills, an intriguing possibility comes to mind. As an expert in war crimes, would Massih be prepared to defend an Israeli general detained in Britain, if the brief landed on his desk?
I rang his mobile to get an answer to this question. Somewhat surprisingly, he was not in Khartoum or Damascus, but buying milk in a London supermarket. “The cab-rank rule is very important at the English bar,” he said. “In this case it’s a theoretical possibility.”

A theoretical possibility? For the Palestinian lad who found his voice haranguing the crowds at Speakers Corner? Surely not. Browsing through the aisles, Massih concluded his thought: “Of course, it’s not going to happen. No one is going to offer me that brief.”

Alan Philps is associate editor of The National

No comments: