Off the Record: Medical Records in the 9/11 Military Commission

This post continues the blog series by Dr Kasey McCall-Smith which examines some of the contentious legal issues raised in the US v. Khalid Shaikh Mohammad, et. al. military commission proceedings against the five men charged with various war crimes and terrorism in relation to the 11 September 2001 attacks on the US. The series is a continuation of her project ‘Torture on Trial’ which was funded by a grant from the Royal Society of Edinburgh and is supported by the Edinburgh Law School.

Personal Data and National Security: Medical Records in the 9/11 Military Commission

Almost since the inception of the 9/11 military commissions, defense lawyers have fought to obtain the full medical records of their clients. In any normal court, a client’s ownership and access to their personal medical records would go unchallenged. The right to privacy is fairly clear on this. Whether relying on the Fifth and Fourteenth Amendments of the US Constitution or article 17 of the ICCPR, individuals have the right to control their personal medical information with some exceptions (notably those outlined in HIPAA in the US). However, in the largest criminal justice trial in US history, access to medical records is shrouded in secrecy and national security privilege is reinforced through redactions to files covering even the simplest of medical treatment, such as providing ibuprofen for pain relief.

Joint Task Force Guantánamo, the cross-branch military force created by the US Department of Defense to run detention operations in Guantánamo, is responsible for assessing and delivering care for the medical needs of all detainees. As a result, it maintains full medical records on the 40 men still held in the detention facility. Government prosecutors also have copies of the full records. However, neither the defendants, nor their attorneys, are able to gather a full account of their medical information because full access is consistently rejected by the Government in the name of national security.

The complete medical records sought begin with those documenting the intake of the defendants in 2006 when they arrived in Guantánamo following years on CIA black sites. The records covering the medical treatment of the five 9/11 defendants is crucial to the case due to the systematic torture they endured at the hands of the CIA and the statements of guilt some are alleged to have given to the FBI shortly after arriving in Guantánamo. The physical and psychological impact of the enhanced interrogation techniques on the men, as documented in the Senate Intelligence Committee Study on CIA Detention and Interrogation Program (SSCI Summary Report) further speaks to a range of issues that are highly relevant to the trial, not the least their ability to participate in their own defence and their competence to even be in the dock.

A primary point of contention comes in response to the public availability of the record of torture, inhuman and degrading treatment the defendants suffered on black sites. The SSCI Summary Report is very clear on the issue of the defendants’ treatment. The CIA shredded all pretence in terms of legality with regard to the treatment of these five men and many others. Constructing an understanding of their physical and mental states in the lead up to the FBI interrogations in January 2007 will shed light on whether those statements may be excluded as torture evidence, an issue that remains unclear at the close of the 35th round of pre-trial hearings.

Redacted medical records

While there is a great amount of writing and authority on the issues of confidentiality, privacy and security of medical records, those discussions are predominantly focused on keeping personal records closed for the benefit of the patient. In the 9/11 case, the reverse is true. Defense teams have spent years trying to gain full access to their clients’ personal medical files. In many instances it is not only about their variable litigation strategies but also about helping explain their client’s individual health issues to them more fully. As has often been raised in court, a number of the defendants suffer conditions akin to post-traumatic stress disorder and there have been suggestions of brain damage following MRI scans, all indicia of the ill-treatment they endured in CIA captivity.

Trial counsel for the government has turned over 47.000 pages of medical history to the defendants relating to medical, psychological, dental or therapist visits since their arrival in Guantánamo. The problem is that all of the documents are redacted to some extent and predominantly it is medical personnel identifiers that are removed. With the exception of seven real name examples Government counsel acknowledged as ones he had ‘missed’ in error, all names have been replaced by unique medical identifiers (UMIs) or redacted to obscure the identification. The UMIs include designators such as Dr Shrek, SMO (Senior Medical Officer) and Dr 10. More vexing for defense counsel is the fact that several of the UMIs are not unique at all. As counsel argued before the commission, in the course of their examination of the records provided by the Government, it has become clear that the same UMI was used by different medical professionals in some cases and in others individuals had used different UMIs in a haphazard way. This inconsistency frustrates defense efforts to piece together a clear picture of their clients’ physical and mental states when they arrived fresh from their years on black sites as they are unable to corroborate the information derived from the incomplete reports.

Persistent threats to medical personnel?

The Government contends that these men pose a direct threat to the safety of medical personnel and their families. It is an interesting argument considering the defendants’ long-term address in the top-secret, maximum security Camp 7 where the very limited communication they have with the outside world is subjected to extensive security and classification reviews. Government counsel went as far as to claim that threats against medical personnel are made ‘practically every day, certainly at least once a month’, suggesting that they were made by the men for whom the military medical corps has provided care for roughly 11 years. It is unlikely that evidence of these ‘threats’ will ever be seen by the public. Such evidence, if it exists, may be proffered through ex parte submissions to the judge anytime prosecution invokes the national security privilege. Defense efforts to substantiate claims of the threats have been fruitless and, according to counsel, none of the few medical personnel that have been tracked down have suggested that they were ever threatened in the course of their treatment.

In-court exchanges suggest that all government explanations of medical records are to be taken at face value despite multiple proffers of error by defense counsel. The more bizarre fact is the Government admission in previous commission exchanges that medical records including the names of medical professionals, is not classified material. Even if classified, or marked as sensitive, the legal team members all have the clearance to view the full documents. In a case heavily dependent on classified material, it is not uncommon for the cleared lawyers to access materials for investigation purposes without sharing the information with their clients. It, therefore, boggles the mind that the Government continues to deny defense counsel information necessary to fully investigate each defendant’s case. It seems solely obstructive that defense counsel is forced to argue for access to full medical records bit by bit as the responsive records provided after each successful motion provides only a bit more information than before. Very simply, the Government should provide unclassified information when requested through discovery.

The tussle over complete medical records appears to be a circular exercise. No logic can explain the stalemate in relation to complete medical records for the 9/11 defendants. And with a third judge due to assume control of the case at the 36th round of hearings in June 2019, the issue is likely far from over.

Off the Record: 9/11 Military Commission in its 7th Year

This is the third post in a blog series by Dr Kasey McCall-Smith which examines some of the contentious legal issues raised in the US v. Khalid Shaikh Mohammad, et. al. military commission proceedings against the five men charged with various war crimes and terrorism in relation to the 11 September 2001 attacks on the US. The series is a continuation of her project ‘Torture on Trial’ which was funded by a grant from the Royal Society of Edinburgh and is supported by the Edinburgh Law School.

Whatever Happened to the Alleged 9/11 Terror Plotters? 9/11 Military Commission in its 7th Year

The largest criminal justice trial in US history is currently taking place on Naval Station Guantánamo Bay. For the most part, the general public has no idea. Apart from consistent media coverage by a small handful of journalists, including Carol Rosenberg (formally of The Miami Herald and now with the New York Times) and John Ryan of Lawdragon, the US public and the formerly vocal academy have forgotten that five men, Khalid Shaikh Mohammad, Khallad bin Attash, Ammar al-Baluchi, Ramzi Bin Al-Shibh and Mustafa al-Hawsawi, are charged with conspiracy to commit various war crimes and terrorism in relation to the September 11th attacks under the Military Commissions Act 2009 (MCA) in United States v. Khalid Shaikh Mohammad, et al. (9/11 case). In previous blogs I have explained the choice of venue for the detention facility, law of war detention, details on some of the detainees, and addressed issues relating to torture. This series looks in more detail at specific issues in the trial and why controversial legal stand-offs may not go away.

The first incarnation of the military commissions were replaced by the MCA following the US Supreme Court decisions in Hamdan v. Rumsfeld and Boumediene v. Bush. The MCA applies to alien terrorist suspects and members of al Qaida, defined as alien ‘unprivileged enemy belligerents’, rounded up from 2002-2008, though recently there has been talk of the potential use of the statute to detained ISIS fighters.

 

The MCA sets out its applicability to offences before, on and after 11 September 2001 and raises questions about the long-standing principle of no ex post facto laws and the creative addition of ‘conspiracy’ to accepted war crimes definitions. The statute combines different and overlapping issues of military law, constitutional law and international law. Observing the 9/11 hearings, the failure to thoroughly evaluate the relationship between these different legal systems is proving problematic in every aspect of the trial’s slow progress. The only clarity lies in the fact that legislative responses to 9/11 were walled off from the realities of the outrageous conduct of the CIA during its Rendition, Detention and Interrogation programme.

According to the Senate Intelligence Committee Study on CIA Detention and Interrogation Program (SSCI Report), it is well documented that Khalid Shaikh Mohammad was subjected to combinations of ‘enhanced interrogation techniques’, so-called EITs, equating to torture designed to exercise total control over the victim. Notably, he suffered periods of sleep deprivation lasting up to 180 hours and was ultimately waterboarded 183 times. The other four defendants were similarly treated. Bin Al-Shibh was subjected to EITs for approximately 34 days and kept in social isolation for almost 2.5 years. Bin Attash and al-Baluchi were subjected to EITs over a period of months. The CIA waterboarded al-Hawsawi and further subjected him to such brutal bodily treatment that he suffers irreparable physical damage. In short, US agents subjected each of them to a sustained and systematic programme of torture in direct violation of US and international law.

The illegal actions by the US were defended by the then Bush Administration as necessary to national security. When rumours and then evidence of ill-treatment began to leak out of US military bases abroad, international civil society and US civil rights groups called for the US, as well States working in concert with the US, to maintain detention and treatment standards demanded by the law. In particular, the customary Law of War and standards outlined in the Geneva Conventions as well as the Convention Against Torture were frequently invoked. Yet as the first detainees arrived in Guantánamo on 11 January 2002 these well-established rules appeared to be the furthest thing from the US government’s mind. For anyone watching as the first goggled and shackled jumpsuit-clad men dropped to their knees in the Cuban heat it was clear that this would be a long game. Of the approximately 780 men that were detained in Guantánamo since it opened the doors to the now defunct Camp X-Ray (pictured below), only 40 remain. One man (Balhul) is serving his sentence following conviction by military commission, 26 are known as ‘forever prisoners’ and eight are currently under charge, including the 9/11 defendants. The 9/11 charge sheet alleges that the defendants committed conspiracy, attacked civilians, and committed murder in violation of the Law of War, intentionally caused serious bodily harm, hijacked an aircraft, and committed acts of terrorism resulting in the deaths of 2.976 along with countless injuries. Following their arraignment on 5 May 2012, intentionally causing serious bodily injury was struck from the charges in the early months of the case. From the outset, issues regarding public access to the trial were raised. Limited public access to close circuit broadcast sites was offered to families soon after the litigation commenced. Though now only a trickle of viewers attend the 40 second delayed live-streams at Fort Meade, Fort Devens and Fort Hamilton. The roster of media and civil society observers at Camp Justice, too, can only be described as small when compared to the original outpouring of attention on the detention activities in Guantánamo.

In its 7th year of pre-trial proceedings, the 9/11 case is bogged down in a range of issues (see subsequent posts) that challenge the rule of law to its very core. How to reconcile the defendants’ status as both alleged terrorist war criminals and torture victims? Does US ‘reinterpretation’ of war crimes definitions square with the law of war? Can an appropriate balance between the alleged crimes and victimhood be achieved? Will the victims of 9/11 ever get the justice they deserve and, if so, at what cost? Seventeen years after the horrendous acts that markedly shifted western governments into a new era of aggressive national security pursuits, it seems that only time will tell. At the conclusion of the 35th round of hearings, we are left only with questions. 

Thinking Without Bannisters: The Spirit of Hannah Arendt

Dr Hugh McDonnell is based in the Department of Politics and International Relations at the University of Edinburgh as a Postdoctoral Fellow on a project assessing complicity in human rights violations. In this blog post, he discusses a recent film screening and round-table discussion event on the work of Hannah Arendt.

The enduring fascination of one of the twentieth century’s leading thinkers, commonly celebrated as highly original and unclassifiable, was explored in ‘Thinking Without Bannisters: The Spirit of Hannah Arendt’. The afternoon event brought together specialists and interested amateurs alike to view Ada Ushpiz’s new documentary ‘Vita Activa – The Spirit of Hannah Arendt.’ This was followed by a round-table session, featuring three foremost Arendt scholars: Professor Patrick Hayden from International Relations (University of St Andrews), Liisi Keedus from Politics (University of York), and historian Stephan Malinowski (University of Edinburgh).

Ushpiz’s documentary explored Arendt’s life and thought in their mutual interconnections. This included an overview of her formative years as a child in a German-Jewish family in Königsberg and Berlin, before discussing her developing and already prodigious intellectual curiosity at the universities of Marburg and Heidelberg, and the formative intellectual and personal influences of philosophers Martin Heidegger and Karl Jaspers.

Naturally, Arendt’s experience and reflections on the Second World War loom large in the film. Her own experiences disposed her to reflect on the condition of being a refugee, to think through the radical rightlessness that this implied. Consideration of Arendt’s famous formulation of the ‘banality of evil’ drew on fascinating original film footage of the 1961 trial of Adolf Eichmann, which Arendt attended. Ushpiz does not circumvent controversies surrounding Arendt herself, as interviewees reflected on hostile reactions to Arendt’s work, particularly Eichmann in Jerusalem, as well as, more specifically, her controversial analysis of the Judenräte.

The round-table discussion was opened by Patrick Hayden’s evocative and thought-provoking disquisition on Arendt’s metaphor of the desert as her attempt to understand individuals’ thoughtless flights from the strangeness and suffering of the political world. On this basis, he developed Arendt’s insights into suffering as the other side of action, that at the same time extends an appeal to our joint responsibility to say “enough” and reaffirm the boundaries of politics. Liisi Keedus spoke next about the intellectual history of ‘thinking without bannisters’, tracing its roots to the modern gap between past and future, while revealing its broader purchase as condition of resistant action. And before opening the floor to questions, Stephan Malinowski reflected on the originality of Arendt’s work from a historian’s perspective, suggesting the fertility of the ideas and questions she raised, and the distinctly interesting character of the answers she reached, even when they strike us as mistaken. Questions from the floor prompted the panel to further reflect on the contemporary relevance of Arendt’s thought: the novel insights she offered in terms of the systemic rather than personalised logic of injustice and violence, her attentiveness to the vulnerabilities of democracy, or her staunch resistance to truth claims that have lost an anchor in political reality. Audience members were left with plenty of food for thought to consider further the meaning of Arendt’s independent thinking, judgement, and responsibility at the present historical juncture.

This event was hosted at the University of Edinburgh, and was made possible by the funding of the Global Justice Academy and Global Development Academies’ Innovative Initiative Fund, as well as the School of Social and Political Science through the Research Student-Led Special Projects Grant. 

More about the author:

Dr McDonell completed his PhD at the University of Amsterdam where he worked between the Department of European Studies and the Amsterdam School of Cultural Analysis. His work Europeanising Spaces in Paris, c. 1947-1962 (Liverpool University Press, 2016) examines ways in which ideas about Europe and Europeanness were articulated and contested in politics, culture, and the Parisian urban landscape. McDonell is also working as a Postdoctoral Fellow on a European Research Council Starting Grant ‘Grey Zone’ project examines complex complicity from historical and theoretical perspectives. More about the project is available here: http://blogs.sps.ed.ac.uk/greyzone/ 

You can read more about complicity in human rights violations in this blog by Dr Mihaela Mihia, Senior Research Fellow in Political Theory at the University of Edinburgh: http://www.globaljusticeblog.ed.ac.uk/2017/02/20/peace-and-conflict-series-4/

 

The Asylum Monologues

This blog has been written by Dr Grit Wesser, a postdoctoral fellow in Social Anthropology at The University of Edinburgh. Here, she reports from a recent Asylum Monologues event in Edinburgh, which brought together performers, academics, students and the public to discuss this global human rights issue.

Immigration has perhaps always been – at least since the rise of nation-states – a contentious issue for policy makers, in public discourse, and around families’ kitchen tables. The so-called “European Refugee Crisis” has renewed a debate not on ‘whether’, but on ‘how much’ to control and limit immigration to Europe. In this process, the issue has been reduced to one of numbers.

But why do people cross borders and leave behind their home countries and loved ones? What does it mean to be an asylum seeker in Scotland? What new boundaries do migrants face, once they arrive in a country that is foreign to them – and treats them as foreigners? Could Scotland become their new home? These questions were being creatively examined through a performance of the Asylum Monologues, and in the panel discussion that followed.

Ice&Fire, a theatre company that explores human rights issues through performance, created the first script of the Asylum Monologues in 2006. Since then the company has recorded and performed various testimonies of asylum seekers, aimed at raising awareness of asylum seekers’ experiences by sharing their stories with the communities to which they now belong. The audience listened attentively to a Scottish script, launched only during Edinburgh’s Fringe Festival in 2016.

The three Ice&Fire performers took turns in telling the stories of a Kurdish unaccompanied minor, a young Pakistani man, and an Iranian woman and their experiences in Scotland. These narrations were candid and often bittersweet, taking the audience on the asylum seekers’ journeys, oscillating between the fear of state persecution and the sensations of loss, hope, and homesickness. The stories evoked the grief caused by broken families and the joys experienced through new-found friends as well as the frustrations and struggles associated with having to start from scratch and the potentials and expectations that new beginnings hold.

The performance was followed by a panel discussion, chaired by Jenny Munro from Beyond Borders Scotland. The panel comprised Professor Anthony Good, Social Anthropology; Phil Jones, manager of the Glasgow Night Shelter for Destitute Asylum Seekers; and Steven Ritchie, one of the three performers. The panellists were joined by two young men whose stories we had just heard: Tony and Aras.

Since Aras had listened to the script of his own story for the first time, he was eager to praise the performer: “It was great. You told it better than I could have!” Tony and Aras spoke to the audience about their new life in Scotland, while Phil explained how the Night Shelter’s work attempts to mitigate the difficulties faced by asylum seekers in Glasgow. Steven, who was also involved in interviewing asylum seekers, revealed more about the process of recording and retelling their life stories.

Issues surrounding the asylum process in the UK were clarified by Prof Good, who has frequently acted as an expert witness on asylum appeals in the UK and other countries. Contrary to the stories we had listened to, he elaborated, the Home Office structures its interviews with asylum seekers in a way that does not accommodate a chronological order of their experiences. Questions are often phrased ambiguously so that asylum seekers’ answers could vary, in turn leading to an intentional undermining of their credibility – a credibility required for gaining refugee status.

After a vote of thanks to the performers, panellists, and sponsors, the event ended with much applause and a donation appeal. The audience donated a total of nearly £200, which was equally split to support the work of Amnesty International and the Glasgow Night Shelter.

Aimed at making the people behind immigration numbers visible again, it was a successful evening – as one attendee later commented: “I’ve been to a few discussions on refugees and asylum seekers in Scotland, but this was the first to have a more creative take with the monologues, which I thought worked really well. It’s always helpful to have a more personal take, because numbers and places are difficult to bring to life.  I thought it was great all in so thanks for putting it together.”

Grit Wesser organised The Asylum Monologues event with Helene Frössling (Scottish Graduate School of Social Science) and Hannah Cook (Centre for African Studies), and in collaboration with Beyond Borders Scotland and Ice&Fire. The event was co-supported by the Global Justice and Global Development Academies’ through their joint Innovative Initiative Fund.

Cinema and Social Justice in Zimbabwe: An Evening with Agnieszka Piotrowska

Brooks Marmon is a PhD student in the Centre of African Studies at The University of Edinburgh.  His thesis examines Zimbabwean responses to the broader process of decolonization in Africa. In this blog post, he writes about an illuminating evening in Edinburgh with Agnieszka Piotrowska on cinema and social justice in Zimbabwe.

With support from the Global Justice and Global Development academies’ Innovative Initiative Fund, the University of Edinburgh hosted Dr. Agnieszka Piotrowska (University of Bedfordshire) in March 2017 for a screening of her film Lovers in Time: Or How We Didn’t Get Arrested in Harare and presentation of a paper on post-colonial trauma.  The event explored the theme of ‘Cinema and Social Justice in Zimbabwe’ and was moderated by Dr. Francisca Mutapi from the School of Biological Sciences.

For the better part of the past decade, Piotrowska has been engaged with cinematic and theatrical initiatives in Zimbabwe.  Expanding on her initial training activities undertaken in Zimbabwe with the support of the British Council, Piotrowska has now made several feature-length and short films in the country and recently published Black and White: Cinema, Politics and the Arts in Zimbabwe.

Piotrowska has been particularly engaged with the Harare International Festival of the Arts (HIFA).  This annual festival in the Zimbabwean capital was the subject of one of Piotrowska’s earliest works on Zimbabwe, The Engagement Party in Harare.  A subsequent edition of the Festival formed the backdrop to the film for which we gathered at Thomson’s Land.

Lovers in Time traces the controversy surrounding a play of the same name.  Written by a Zimbabwean, Blessing Hungwe, Piotrowska was selected to direct the performance at the 2014 edition of HIFA.  The play provocatively traces Nehanda and Kaguvi, revered Zimbabwean spirit mediums who played prominent roles resisting the intrusion of white colonists in the late 19th century.  State media criticized the play for reincarnating the characters with a different gender, calling it “a distortion of history” and Piotrowska was requested to make (slight) alterations to the script, which she refused.  The documentary follows the impact of the tension induced by this critical attention on the cast and crew.

Piotrowska spoke frankly on the challenges she faced in directing the play both in the film and during her remarks. Toward the end of the film, following a scene in which the play has been disrupted by a protester, she queries in a voice-over, “I’m left confused and battered, not sure at all anymore.  Did we change anything?  Did we open a space for dialogue about history and race?”  She does not directly answer the question in the film, however during the Q&A, she noted that if she could do it all over again in that moment, she would.

Ultimately, as the title foreshadows, no one gets arrested. Piotrowska continues to work in Zimbabwe.  She has overseen the production of several shorts on the tumultuous relationship between the German academic Flora Veit-Wild and the celebrated Zimbabwean writer, Dambudzo Marechera.  Her latest feature-length piece, a film noir entitled Escape with Joe Ngagu (with whom she also collaborated on Lovers in Time) will soon premier in the UK.

Piotrowska, whose work draws heavily on psychoanalysis, has described herself as a ‘trickster’, subverting dominant structures in a humorous manner.  In light of her continued (and prolific) work in and on Zimbabwe, it seems that the post-colonial trauma she endured in staging Lovers in Time has not dented her ambition to provocatively interrogate the lingering impact of foreign rule on Africa.

 

Should we have hope for the human rights project?

Vivek Bhatt is reading for a PhD in Law, and is a Global Justice Academy Student Ambassador for 2016-17. He recently attended and spoke at a conference hosted by the University of Sussex’s Human Rights Research Centre. The conference theme was Challenging Human Rights Disenchantment.

The past few years have been uncertain times for the human rights project. On one hand, the human rights discourse seems ubiquitous in contemporary international affairs. Yet on the other, the authority, legitimacy, and efficiency of international human rights law are continually being challenged. 2016, for example, saw the escalation of the refugee crisis resulting from conflict in Syria and Iraq, the rejection by several African heads of state of a UN dialogue on the human rights of same-sex attracted individuals,[1] and the election of a new American head of state, who – from the outset – has expressed an unwillingness to abide by key international human rights laws, the Convention against Torture, and the Refugee Convention.[2] In light of such developments, disenfranchisement and frustration with international human rights law seem inevitable. While some suggest that human rights are admirably idealistic but ultimately unenforceable,[3] others claim that the human rights project is but a vehicle for capitalism, the entrenchment of global power disequilibrium, and Western neo-colonialism.[4]

It was against this troubling backdrop that the Sussex Centre for Human Rights Research at the University of Sussex hosted its inaugural conference, titled Challenging Human Rights Disenchantment 50 Years on from the ICCPR and ICESCR. The interdisciplinary conference brought together human rights advocates, lawyers, and philosophers, with speakers considering various forms of human rights disenchantment, and the ways in which they can be challenged. Mona Rishwami – Chief of the Rule of Law, Equality, and Non-Discrimination branch of the OHCHR – opened the conference with an outline of the developments that galvanised the human rights movement and the profession of human rights law. Rishwami suggested that although the current legal framework for human rights was conceived in the aftermath of the Second World War, it articulates concerns and ideals that are pertinent to contemporary human experience. She was followed by Professor Pamela Palmater, who – as an indigenous woman – argued that human rights activism should no longer be left to members of the world’s most marginalised communities. Citing the disproportionate number of indigenous women in custody and the infrastructural underdevelopment of indigenous nations within Canada, Palmater suggested that human rights violations are rife even within States that are reputed as bastions of human rights. To Palmater, human rights law generates demands for state accountability, demands that we must all amplify within and beyond academic circles.

Following a series of thematic sessions featuring speakers from the UK and abroad, the esteemed Professor Andrew Clapham delivered a closing address. Professor Clapham shared anecdotes about the many ways in which he has been confronted by human rights disenchantment, from being told that human rights ‘are for girls,’ to seeing politicians and the press tell ‘lies’ about the competence and function of regional and international human rights bodies. While Professor Palmater highlighted the importance of human rights advocacy by individuals, Professor Clapham addressed the roles of academics and lawyers. He suggested that we must defend human rights as a binding and legitimate body of law, dispel pervasive fictions about the function and reach of human rights bodies, and challenge rhetoric that characterises human rights law as vacuous idealism.

Though they focused on different issues, Palmater and Clapham made a common argument: that there exist innumerable human rights issues around the world today, and their resolution requires engagement with individuals outside the realms of human rights law and academia. This, to Palmater, is in order to encourage widespread human rights activism. To Clapham, meanwhile, it is in order to legitimise human rights as a valid and functional category of law that can – and does – influence governance and society. Clapham’s argument resonated with Charlesworth’s description of international law as a ‘discipline of crisis’;[5] we can challenge human rights disenchantment by encouraging sceptics to look beyond the law’s most prominent failings, and to recognise the ways in which human rights laws exist as practice, constituting everyday realities.

As a participant, I left the conference with conflicting intuitions. I had spent the day speaking and hearing about the emancipatory promise of human rights, but simultaneously reading news about a travel ban in the USA and a possible escalation of torture practices in the context of the war on terror. Yet there was meaning to be found in this apparent clash between theoretical optimism and reality. Not that we should give up on human rights altogether, but that the human rights project is most important and meaningful precisely when the reasons for disenchantment with it seem most convincing. Human rights provide a basis for critical discursive and legal engagement with political institutions by academics, social movements, lawyers, and jurists. International human rights law also serves as a reminder that each individual is entitled to certain liberties and securities by virtue of his or her humanness. The policies of the Trump administration may be conspicuous and shocking, but they should not diminish the significance or urgency of other human rights issues around the world. As moral claims and as law, human rights require us to reflect on and respond to all instances of marginalisation, deprivation, and violence. This includes not only the suffering of migrants in constitutional democracies, but also indigenous communities, persecuted religious minorities, and same-sex attracted individuals, among others.

We should, therefore, have hope for and promote the human rights project. As Professor Palmater implied, inaction and despair would merely aid the demise of something we recognise as intrinsically valuable. The inaugural conference of the Sussex Centre for Human Rights Research highlighted not only the diversity of current human rights scholarship, but also the number of domestic, regional, and international practices that can be influenced (and improved) by human rights considerations. More information on the conference proceedings and speakers, including a copy of the programme, can be found at: http://www.sussex.ac.uk/schrr/pastevents/challenging-human-rights-disenchantment.

About the author

Vivek Bhatt is an Edinburgh Global Research Scholar, and is reading for a PhD in Law. He holds an MSc in Political Theory from the London School of Economics and a Master of International Law from the University of Sydney. Vivek’s research interests span public international law, international political theory, and counterterrorism. His current research relates to the engagement of individuals in the international legal system through the course of the war on terror.

[1] Permanent Mission of the Republic of Botswana to the United Nations, Statement of the African Group on the Presentation of the Annual Report of the United Nations Human Rights Council (4 November 2016) United Nations PaperSmart < papersmart.unmeetings.org/media2/7663738/botswana.pdf>.

[2] See, for example, Mark Mazzetti and Charlie Savage, Leaked Draft of Executive Order Could Revive C.I.A. Prisons (25 January 2017) The New York Times < https://www.nytimes.com/2017/01/25/us/politics/executive-order-leaked-draft-national-security-trump-administration.html?_r=0>.

[3] See, for example, Eric Posner, The Twilight of Human Rights Law (Oxford University Press, 2014).

[4] See, for example, David Kennedy, ‘Reassessing International Humanitarianism: the Dark Sides’ in Anne Orford (ed), International Law and its Others (Cambridge University Press, 2006) 131, 133-5.

[5] Hilary Charlesworth, ‘International Law: A Discipline of Crisis’ (2002) 65(3) The Modern Law Review 377.