Baroness Helena Kennedy of the Shaws, KC, is one of the UK’s most established lawyers, a bencher at Gray’s Inn and a member of the House of Lords. Kennedy is also a broadcaster, journalist and lecturer. She has not only acted in many of the most prominent cases of the last decade but has promoted civil liberties and human rights far and wide as Director of the International Bar Association’s Human Rights Institute.
Baroness Kennedy has also worked to uphold the independence of the legal profession and respond to some of the most abhorrent acts committed by mankind. She recently spoke with JURIST UK Senior Editor James Joseph to discuss her work.
A recording of the interview can be found on the JURIST News YouTube Channel.
JURIST: So you’ve recently raised the authoritarian attacks by the UK Government on lawyers and the importance of a free, and independent legal profession, which needs to be upheld. You compared such attacks to tactics used by authoritarian regimes, something which I know you spent many years working on. I recently interviewed a former Lord Chancellor on this. How important is the independence of the legal profession, both here and around the world?
Baroness Kennedy: Well, it’s one of those things I feel that sometimes gets lost when we talk about the rule of law. We always link it to the idea that, first of all, “we’re all equal before the courts,” and that “justice shouldn’t just be justice for the powerful,” and it should be justice for everyone. That’s one of the fundamentals of the rule of law. But one of the other fundamentals is that there should be an independent judiciary, and people tend to know that one. But what they don’t tend to ever refer to is that there also has to be an independent legal profession—that lawyers have to be recognised as being fundamental to the good workings of the courts. People need to be represented because they often don’t know, for example, what constitutes good evidence and what burdens of proof there might be. So as lawyers, we bring a special set of skills and expertise to the proceedings, but we also bring a high standard of ethics. That has been our belief.
For example, we really have to emphasise to the public that lawyers act on behalf of their clients, not just to make sure that their clients get a fair hearing, but also to protect the system. Over the years, there have been ways in which the media, but also politicians, and also the general public, seem to think that the lawyer who’s acting, for example, for someone charged with terrorism must sympathise with the cause, that a lawyer acting on immigration cases is somehow trying to open the doors to everybody to enter a country and is politically driven. And the reality is that lawyers should not be associated with the belief systems of their clients.
What we want is for people to be well represented because that makes the system good and true for all of us. I’ve done many cases, acting for people who have been strongly connected with views that I don’t share. For example, I’ve acted for fundamentalist Islamists who are absolutely against equality for women. They don’t believe that women should be judges or should be taking part in public life, and they feel women should remain at home. It’s never stopped me acting for them. Although, I have a very strong set of very egalitarian principles when it comes to feminism. So, people shouldn’t be associated with the views of their clients. However, the press do it all the time. We’ve recently had the business, which really was quite outrageous, of politicians talking about ‘lefty lawyers‘ representing people who are asylum seekers, as though somehow your politics come into it. People represent people who have proper cases, and their role is to ensure that there is due process according to law, so this is infuriating when people should know better, sometimes lawyers themselves. Our home secretary is a lawyer and yet she finds herself saying things about lawyers that I think are deeply inappropriate and improper for someone who believes in the rule of law. And so it’s very easy when governments are being populist and seeking popular support on issues, it’s very easy for them to fall into that trap of undermining some of the things that are fundamental to the good workings of democracy.
What you and I know and all good lawyers know, is that the law is a fabric that holds society together and it doesn’t matter whether you’re a commercial lawyer or an immigration lawyer or a criminal lawyer, whatever kind of lawyer you are, we know or we should know that that it’s all of a piece. Once you start destroying parts of the legal system and thinking that some people don’t deserve representation or due process, then you’re really undermining the whole fabric. We should be proud in the United Kingdom, that we have the respect of the world when it comes to the law, and that’s partly because we have great judges who are not corrupt. When was the last time you ever heard of a judge in any way being connected to disreputable or corrupt behaviour, taking money to affect the outcome of a case? This doesn’t happen in Britain. Similarly, it’s quite rare actually, for lawyers to be involved in that kind of behaviour.
And of course, once you start taking a side to legal aid, where people are not paid properly and don’t feel that their professionalism is being respected, the temptations then for people to take additional monies from clients in addition to Legal Aid, to make their services available, can become high. That’s how you sow the seeds of corruption. We had our own period of corruption back and the early 18th century to the early 19th century. There was corruption amongst our judiciary. But the way that we resolved that was to give status to the judiciary, often when at the highest level, they were made members of the House of Lords and given the title of Lord. They were made knights when they sat on the High Court or the Court of Appeal. That independence came from giving those sorts of protections to judges, and what we expected in return was independent, committed service to the law and to justice. But I’m afraid we’re likely to lose that respect around the world if we don’t take care of it, and that means protecting lawyers and judges. Also, we need to nurture lawyers to become those judges, those independent ethical, non-corrupt judges.
One of the things that brings it home to me most strongly is my work internationally. Now, being me, I’ve been involved with the International Bar Association, but before, I became the Director of the Institute for Human Rights. One of the things that we know as we do work protecting lawyers and judges who are at risk, we know that what happens is that authoritarian, populist governments go after the courts, they go after lawyers because they want to take them under their own control. We see the judiciary being captured in places where the judiciary become too frightened to ever find against the state. The courts almost become rubber stamps in doing the bidding of the state. You see the fear that is inculcated in the legal profession. I’ve been involved in cases where I couldn’t get a firm of lawyers in countries to take on cases against corruptly leading figures in politics of that country, or even when it’s come to sexual violation of women, not been able to find lawyers who are prepared to take the cases because they were fearful of the consequences of taking on power. So we really have to recognise that if you start attacking lawyers for the work that they’re doing properly and ethically for their clients, then we’re in trouble. And it’s that generalisation, of course from time to time you find that there are bad lawyers, and they should be properly brought before their professional bodies if necessary, and in the right circumstances, they should be prosecuted. But you don’t generalize whole categories of lawyers as if they’re corrupt or doing work that is not in the national interest.
And I have the privilege of being the President of the Council of JUSTICE. JUSTICE is a fantastic organisation of lawyers across the United Kingdom, and it really does do very interesting work on reforming sections of our legal system, doing the preparatory work and the research to make it available to the senior judiciary, to make it available to government, for them to consider sensible reform that is not going to interfere with the fundamental principles that pin down the rule of law.
We often provide what’s called amicus curiae briefs [1], supportive briefs, and we have those written by really fantastic legal brains and serious intellectuals in the field of law. JUSTICE is a great organisation. It’s not the least bit political. It’s got lawyers from across the political space, I mean, except for lunatics who might not want to be involved in it. I mean if you’re an anarchist who doesn’t believe in law you wouldn’t belong to JUSTICE. If you’re on the far right here and an extreme libertarian, you might not want to be involved in law reform because you don’t think that the law should be impinging on your freedoms. But it’s sensible. Your lawyers across the political space support JUSTICE, and they are concerned about what’s happening in our country. How can I speak out about China and call out to China for its breach of international law in the Sino-British Treaty when the UK left Hong Kong? It made a commitment that it was going to be one nation with two systems, and it was going to respect democracy and the rule of law, and it’s become very clear that they’re not wanting to do that. They started by wanting to have extradition proceedings so they could have people that they wanted dealt with in their courts extradited to China.
How can I call out China’s interference in the system of law and the system of democracy in Hong Kong if we ourselves are being dismissive of treaties that we’ve signed? We signed the Brexit treaty; we signed a treaty with the European Union, which was that we were departing but on a certain basis. And then the next minute we want to tear it up. We can’t do that. International treaties have meaning, and they’re lodged with the UN. It was shocking to watch that going on. Then you’re seeing that happening with the Refugee Convention. There’s an argument to be made, and I tend not to agree with it, but there’s an argument to be made about whether the Refugee Convention is fit for purpose in the 21st century. People being persecuted should be able to flee to a new place and to be given sanctuary. But it may be that what we’re seeing in relation to climate change, people fleeing the torment of fire and brimstone and flood to want to get to a safe place, and it may be that the world has to think again. But in seeking to think about that, you know, there’s the big issues about what our responsibilities might be in that and the legal responsibilities that there might be too, but the solution is not to sort of tear up a commitment to provide a haven for those who are being persecuted. And so I just feel that our willingness to tear these things up follows in the footsteps of Trump and follows in the footsteps of Viktor Orban in Hungary, and indeed, even more spoke like Putin in Russia or Lukashenko in Belarus, who have no interest in the rule of law.
JURIST: We have been reporting the rule of law in crisis. More and more at the moment, we see that crises are popping up left, right and centre across the world, like Russia’s aggression in Ukraine. And this culture of impunity for states to commit atrocity and commit human rights violations on the territory of other states wherever they feel necessary, with this total lack of regard for international norms and the rules-based order, how do you see in terms of those current threats, which we see to this rules-based order and the rule of law internationally? Where do you see that heading?
Baroness Kennedy: Well, first of all, we’ve got to see, where do I see it coming from? And where I see it coming from is that globalisation was something that we’ve largely been greeting as a very positive thing in our world, and we thought it would involve helping poorer parts of the world to come out from under, to have their own development strategies and to be assisted by the rich world in that development. Unfortunately, that hasn’t happened. But we’ve seen how reckless greed led to an economic crisis in 2008, which affected the whole of the world, and so the triumph that came after the end of the Cold War when the Soviet Union collapsed. We saw the burgeoning of democracies was a great moment. I mean, many of us felt so excited about the fact that, you know, the juntas in Latin America had collapsed, that apartheid had ended in South Africa. I mean, looking at the end of the 90s, I was feeling very positive about the state of our world, but I think it was premature. And there was a bit of triumphalism about not just the fact that we felt that democracy had and the yearnings for people to have the freedoms that come with a genuine democracy. What we ended up with were 40 democracies in places like Russia, and we also let the market rip.
So instead of successful global markets and markets developing in places where there never had been free markets before, what we got was criminal enterprises and people enriching themselves in the most gross and unforgiving ways at the expense of ordinary people. And the creation of sort of plutocrats and oligarchs and people who swaggered in their richness, and we in the West, you know, took advantage of some of that. That’s not been dismissive. So I think that our world has come through a thing of, you know, a very sort of immature celebration of money, and money being the most important value. And we’re coming to realise that there was a folly in a lot of that and the economic model that was adopted around the world has certainly not shared out and distributed some of the riches that have been created by developments like technology.
And so for me, you can’t talk about law unless you understand your politics, and I always say to my team who work with me in at the institute or to my young colleagues in my chambers. I always say, and when I’m speaking to students obviously, look at the maps. Look at who’s next door to who. Look at what’s happening. Make sure you’re reading widely, not nonsense on social media, but read from reliable sources the things that are going on in different parts of the world and why. And so I feel that that the undermining and the rule of law position, which is fragile now, is because we have seen a kind of, if you like a turning against globalisation, the rise of nationalisms, putting up walls and wanting to look after number one, and not realising the solutions to so many problems, I mean, collaboration and internationalism as a way of doing many things. But people who run authoritarian governments don’t like law, especially if the law holds them to account, and so they don’t like their critics in the media. They don’t like the lawyers who represent their opponents, and they assume that those lawyers are sort of up to the eyeballs in colluding and conspiring to bring down the government as well. And so you end up having judges who can sometimes even if they’re not obviously captured, and policemen that are appointed by the president or Premier, start feeling the chill winds of what’s going on in the nation and start being very compliant. So the judges don’t even know they’re doing it, but they don’t rock any boats, and they take great care. And they think they’re doing it to protect the law. But in fact, in many ways, it’s about self-protection. One can understand the psychology of that, but I’m afraid it’s not good for law.
JURIST: No, absolutely. I agree. I think the rise in authoritarian structures is huge at the moment. And on that point I wanted to ask you: the UK just has recently determined that the treatment of Yazidis is indeed a genocide, something which you’ve worked on relentlessly over the last few years alongside other lawyers at the IBA like Ewelina Occhab, who I interviewed for JURIST a few months back. Could you give us a comment on your work and what this means for the Yazidi people?
Baroness Kennedy: Well, one of the terrible things is that the Yazidi were sort of friendless in that region. Their position was almost like that of the Roma in Eastern Europe, you know, or indeed Jews in the 20s and 30s, where people suddenly are being blamed for all manner of things that have nothing to do with them, or they’re seen as being lesser or they are marginalised within societies. And the Yazidi, you see, because they were of a very ancient religion, not one of the monotheistic religions, because they seem so separate and lived in a in a very different way, they faced the hostility of Syria, Turkey and Iraq, but they were basically a people who were held separate.
And so when ISIL you know, the Islamic State folk arrived on the scene in that region and we’re determined to set up an Islamic state going back to an ancient form of the caliphate and were deriding democracy and certainly deriving the rule of law as we know it. The Yazidi were in their way and became an easy target for them. And so they decided to annihilate them. And they were looking for space of course in which to create that caliphate. And so, the beheading and slaughtering of the men and boys, the enslavement of the women and girls and the sexual abuse and treating of people as less than human was just a terrible, terrible thing to document. I went out and spent time with the Yazidi with youth, particularly with Yadizi women in the camps in Erbil and the Sinjar region, and I met with many of those women who had been impregnated and had babies and loved those babies because they were so alone and separate and then had to abandon those babies in camps because their own people didn’t want to have the children of the people who had slaughtered so many of them. So you create a monster in here, and it was a genocide. I mean, it was undoubtedly about extermination. And the ghastly thing is that we see that as wanting to really destroy the humanity of a people.
I did a report very recently on the Hazara in Afghanistan and Pakistan. The Hazara are a minority religion; they are some form of Shia, but they’re certainly not part of the dominant form of Islam in Afghanistan or Pakistan. And they are absolutely marginalised but worse than marginalised. They really are at the receiving end of the most terrible persecution. And of course, when NATO troops, the United States and the UK pulled out of Afghanistan. The Hazara were not high on the list of people who needed to be saved. And yet, they are at the front line of the slaughter. And I became involved as you know, in relation to the women, the women judges and lawyers and so forth, and some of them were Hazara. But what’s happening to the Hazara people continues to be really horrifying.
And you have the Uyghur in China and the Rohingya. A signal of what is genocide is what is done to women, the business of impregnating women, so that they are producing children that are not going to be seen as being of their community. The orchestrated sterilisation or abortions forced on women, the sexual abuse and violation of women so that they become filled with shame and mortification. I mean, it’s just horrible. And that is always a signal of armies or dominant forces that are in the process of completing a genocide. And when we say in the Genocide Convention, we were committing to preventing genocide not waiting till it’s happened. When we see signals of it happening, our duty is to act, to act to prevent.
JURIST: Absolutely, that was going to be my last question. Also, yesterday was Hazara Genocide Memorial Day, which commemorates the atrocities committed against the Hazara under the reign of Abdur Rahman Khan in the 1800s. And again, we see that continuing today under the Taliban. I was going to ask this, you’ve already answered it, but how pressing is the need to keep eyes on Afghanistan and indeed, start to help prevent the genocide of the Hazaras. The sort of early warning signs is something that we talked about often, and we never seem to get to the point where we act on early warning and prevent the possibility of genocide. So how pressing is it to recognise the genocide of the Hazaras?
Baroness Kennedy: One of the questions that I’m constantly asked is, do we do we talk to China? Do we talk to the Saudi Arabians? Do we talk to the Taliban? My answer to that is, of course, we keep doors open because we’re never gonna get anywhere unless we actually try to change minds. I’m a firm believer in the hearts and minds business of trying to get people to see why our shared humanity and protecting our shared humanity has to be one of the ground rules if we want to create a peaceful world, but I don’t see that as my job. You know, my job is to call out the horrors and to tell people the stories of what’s happening as a human rights lawyer and to seek to get justice for the people who have suffered.
So when it was in regard to what’s happening in Afghanistan, just I mean, I happen to see and believe, and I’m totally convinced that the right word to use is apartheid. Apartheid was about keeping people apart, treating people as second-class citizens, not respecting their humanity and denying people by virtue of some identifying factor, the colour of their skin, their sex or gender or sexuality, denying people participation in society, the sort of participation which means this is my home, this is the place in which I live or this is my nation. And not to allow them participation, freedom of movement, freedom of association, freedom to work or freedom to be educated. All that’s been denied to the women and minority peoples in Afghanistan by the Taliban. So in conversations with the Taliban, those have to be constantly at the forefront. I mean, it’s so bad. It’s so bad in Afghanistan, that we should be doing as we did with South Africa, we should be building a coalition of people that are going to boycott the Taliban and make it clear to them that what they’re doing is a crime, and that they’re not going to be supported to develop as a nation until they do something about it. And eventually, you get people who get the message. Some people say to me, “you’re just going to drive the Taliban into harder positions.” Now, we can do business on many different fronts, but my role in all of this as a lawyer is to talk about justice and to talk about how justice can be secured for people who have been denied justice. And my God did I see up close when I was working with the Afghan women who were going to be killed. And indeed, two senior judges were assassinated, women judges on the Supreme Court. So we mustn’t imagine that the regime is somehow going to be persuaded easily to start respecting the rule of law and human rights.
And I have a problem, for example, with Saudi Arabia. You know, I was involved in the investigation into the assassination and extrajudicial killing, because that’s what it was, of Jamal Khashoggi. And I heard that man being killed as if I was in the room with him. It was horrifying to hear that the recognition by him that he was facing death. It was horrible. And to know that they then desecrated his body and cut it up and they had planned it. They brought a pathologist with them. And then the pathologist, before the cutting up, was cross about the fact that he was going to be bad for his back that he was going to have to do on the floor.
JURIST News: I recently spoke with REDRESS Trust and with Matthew Hedges who was tortured in the United Arab Emirates on his condition, and treatment, and Saudi Arabia is another rogue state with complete impunity. What is your position again on such rogue states?
Baroness Kennedy: Here we are in a world where the United Kingdom has left the European Union, our nearest neighbour, and so we want trade and we want trade with China and so forth. Do we pretend that human rights have got nothing to do with what’s happening? They’ll be happy to go into trading relations and not to talk about the fact that there are things going on that we feel you know, I’m not speaking to the best part of the Chinese people. I know lots of Chinese people who are perfectly decent folk, but I mean what the state does is appalling. And the same thing we’re about to entertain Mohammed bin Salman, roll out the red carpet for him for a state visit. No. I don’t mind our ambassadors going and speaking to him and talking to him about the importance of his oil in dealing with this Ukraine-Russia war since, you know, a lot of Europe can’t get its oil in the ordinary way from Russia, because it did. And so therefore, Saudis are being expected to step up. The Saudis are making trillions out of stepping up, and they’re not doing it as a charitable exercise. You know, are they playing a proper role in the world? Are they behaving like a decent state? And then you get the long arm of the state going off and killing people.
And we’ve just seen you know, this happening in so many places. Somebody from my own country, Scotland, a Sikh named Jagtar Singh Johal, living and brought up in Scotland, went out to India in order to marry and to meet his bride, and he was arrested and has been in jail for six years on the basis that he used to speak publicly about wanting to see an independent state for Sikhs, you know, rather like from Scotland, my home country, but at least they don’t get thrown in jail for saying it. And, you know, we have to call this stuff out for what it is.
NOTES
[1] An amicus curiae brief is a written submission to a court in which an amicus curiae (literally a “friend of the court:” a person or organization who/which is not party to the proceedings) can set out legal arguments and recommendations in a given case.
