The case went on into the evening, and the board came back with merely a reprimand. I could not tell which argument had convinced them not to suspend Tyson’s boxing licence, although the press reports of their decision were headlined ‘Tyson Lands Human Rights Uppercut to Boxing Board’.6 Thereafter, the Act would benefit many more worthy clients, but the case did make the point that human rights are for everyone – the good, the bad and the ugly.
One day in 2009 at Doughty Street we had a visitor who came to talk to us about her work at the Lebanon Tribunal, an international court in The Hague. Curiosity brought me to the lecture, given by a young woman whose clever analysis and powerful presentation – quite apart from her fashion sense – made a big enough impression on all of us for me to suggest to my colleagues that she join Doughty Street. And so we offered Amal Alamuddin a tenancy. The first case we worked on together showed her calibre – it was a petition to the European Court of Human Rights on behalf of Yulia Tymoshenko, who had been prime minister of Ukraine and had led the ‘Orange Revolution’ against the Stalinists. Her enemy, the corrupt President Viktor Yanukovych, used his control of the judiciary to have Yulia jailed on trumped-up charges: she was ill and in a prison hospital, her privacy grotesquely invaded as every move she made was videotaped. When Ukraine’s human rights record was to be discussed at the Human Rights Committee in Geneva, Amal and I went off with Yulia’s daughter, Eugenia, to lobby some of the delegations to mention her mother’s case and deplore her unjust treatment. ‘Oh, we can’t possibly mention names,’ said the British diplomats. ‘It’s against the rules.’ But the next day, a number of the delegations did break the rules and condemn Yulia’s maltreatment – the British, of course, squibbed, but the Americans spelt out her case and the Australians named her twice, perhaps because we had reminded them that Australia also, at the time, had a Julia as prime minister. I chaired a meeting at the Geneva Press Club, where Eugenia gave a moving account of her mother’s sufferings and Amal provided an incisive analysis of Ukraine’s breaches of international law. The court in Strasbourg decided in her favour, and before long the mass demonstrations at Maidan Square saw Yanukovych flee to Moscow and Yulia freed from prison.
Amal is an exceptional lawyer and a loyal colleague. Soon the gossip columns were describing her as London’s ‘most beautiful barrister’. A mutual friend introduced her to George Clooney. After their much-publicised wedding in Venice, the paparazzi descended on Doughty Street – when we had lunch at Charles Dickens’ coffee shop they would wait behind cars in the street for us to emerge, and then illuminate us with a lightning strike of flash bulbs. A bomb threat was phoned through to my extension at the chambers, and I wondered which of my cases had provoked it until I realised that it was probably a photographer hoping to empty the building so he could get his shot of Mrs Clooney. Amal uses her celebrity wisely and well, as a role model for young people who aspire to a professional career working for human rights, and in propelling a slothful United Nations to set up a court to punish the genocide that has been inflicted upon the Yazidis.
We appeared together in the Grand Chamber at Strasbourg, representing Armenia in Perinçek v Switzerland. Perinçek was a racist provocateur and fascist politician from Turkey, who went around countries which had genocide-denial laws, trying to get prosecuted for declaring that the Armenian genocide was a lie. The Swiss fell for his provocation and convicted him for genocide denial, and three judges in Strasbourg’s lower court commented in passing that the reality of an Armenian genocide was an open question, although (as I had pointed out in a recent book) it was true beyond reasonable doubt. We entered the fray to have these ignorant comments overridden by the appeal chamber. As far as Perinçek’s conviction was concerned, we argued that it was unnecessary because nobody would bother about his opinion – it had not stirred up racial hatred or incited violence, and we were conscious of the need for free speech to protect Armenians and others who were being threatened with prosecution in Turkey for ‘insulting Turkishness’ by asserting the truth of the genocide.
The Grand Chamber of seventeen judges decided the case much as we had argued.7 The paparazzi had been allowed into the chamber to photograph Amal and myself in our Ede & Ravenscroft outfits, and Amal’s speech, setting out the facts of the genocide, must have been watched by every Armenian in the world. George tells the story of his regular Armenian car-park attendants at Los Angeles airport – when he next left his car, one shouted to another, ‘Hey! This guy is married to Amal. He gets to park for free!’ And I became a ‘bonus point’ on a BBC trivia quiz hosted by an old friend, Clive Anderson. He showed a picture of us both, and asked, ‘For two points, what is Amal Clooney’s maiden name? And for a bonus point, what is the name of the old guy beside her?’
Another of my exercises with Amal was to examine whether international law regarding the right of nations to have their cultural property returned might develop far enough for the British Museum to be ordered to return to Athens its half of the Parthenon Marbles – sculptures of magnificent heritage illegally ripped from the walls of the Parthenon by the British ambassador Lord Elgin at the beginning of the nineteenth century. I had a track record in this area, since I had sued the Natural History Museum in a case brought on behalf of Michael Mansell and his Tasmanian Aboriginal Centre to secure the return from England of skulls and other remains of their ancestors, which had been sent to Britain as curiosities in the nineteenth century. Now I had a call from my old university friend and ex-ABC boss David Hill, who was president of an international organisation demanding the return of the marbles. Might the law help to achieve this?
Very soon the prime minister of Greece invited us to come and inspect the new Acropolis Museum. It had been built beneath the Parthenon, and housed the other half of the marbles. They waited there, those dismembered gods and goddesses, to be reunited with the rest of their marbled bodies, stolen by Elgin. Our visit was much publicised and highly emotional – I found myself protecting Amal from old Greek ladies who wanted to hug her. We came away convinced of the case for reuniting the marbles, especially after seeing them in the British Museum at a secret visit, although it was by then difficult to do anything secret with Amal – she is always recognised and asked for selfies.
The marbles are an architectural wonder – an extraordinarily evocative picture of life in the first civilised society. Ordered by Pericles and sculpted by Phidias around 440 BC, they depict a procession in which people are walking and talking, playing sport and drinking wine. They are rightly regarded as a unique cultural treasure, not only for Greece but for Europe and the world. It was a crime to loot them: I studied the evidence carefully, and it is clear that their removal was contrary to Elgin’s licence (which allowed him to take only ‘stones’ lying on the ground). He lied to Parliament when he said he had saved the marbles from Turks whom he had observed stealing them – he did not arrive in Athens to observe anything until the theft he had ordered was almost completed by his workmen. Nor has the British Museum kept the marbles responsibly. In the 1930s it allowed them to be cleaned destructively (with a carborundum rubber and copper chisels) and now disrespects them by their display in a gallery dedicated to Joseph Duveen, an art fraudster.
Reuniting them with the marbles in the Acropolis Museum seemed to us a cultural imperative, and we thought that the Greek government had a reasonable chance of success in an international court. We wrote a lengthy opinion to this effect, but the government had changed by the time we came to deliver it, and said it would instead rely on diplomacy – a device that has failed Greece for more than 180 years (its first diplomatic demand was in 1833) and will always fail. One of the great things about Great Britain is that it usually complies with international law, and legal action in the International Court of Justice or the European Court is the only way that the two sets of marbles will ever be reunited. Unless, of course, the UK sells them to Europe to obtain a reduction in the cost of Brexit.
I am proud of creating Doughty Stree
t Chambers and particularly proud of the 150 younger – mostly much younger – barristers who have come to share its ethos and commitments. It is a postmodern invention in the sense that it has harnessed the two great attributes of the profession – brain power and independence – into a co-operative enterprise for developing human rights principles in legal doctrine and practice, in a rapidly changing society. (Changing, I might add, partly as a result of an increasing acceptance of those principles.) The work is focused not only on English law: ‘Doughty Street International’, our global arm, takes our members to all continents and many countries in the world to fight death penalties, torture and state repression, and discrimination on grounds of gender and sexuality. At home, our teams deal not only with media and constitutional law, but with actions against the police, inquests, battles over housing and mental health, the rights of prisoners, of women, and of the LGBTI community, race relations, environmental protection, and the rights of children. The Doughty Street model has already spawned rivals and imitators – it is hard to believe how revolutionary it all seemed twenty-seven years ago. None of us ever expects to make fortunes, just a reasonable income without any profit share. On a turnover of about $50 million per year, that leaves enough money to sponsor human rights initiatives. Of course our premises do not compare with the lavish offices with water views, or the conference rooms with walls dripping with valuable art, in which big commercial law firms operate in Sydney, London and New York, where millionaire solicitor partners share in equity and profits. We are, at Doughty Street, individual barristers who have combined for progress rather than profit, while retaining our independence. We like it this way.
16
Freedom of Speech
Doughty Street became the base from which I could progress an idea that had first struck me as an articled clerk in Sydney, sitting behind Tony Larkins and Clive Evatt. In those ‘defo’ cases, the temple of law turned into a casino as juries awarded large sums in tax-free damages against newspapers for articles that could well have been true, but were impossible to prove (the burden of proof being, unfairly, on the defence) if sources were reluctant to come forward. The libel law allowed the covering up of local scandals, especially political and police corruption, and financial skulduggery. It was the same libel law that I came to practise in London. It had no defence for public interest investigative journalism, or for publications that had been properly researched and were reasonably believed to be true. Defamation was the weapon used by the powerful to punish those who exercised their free-speech right to reveal guilty secrets. As a result speech was not free – it could be very expensive.
All this was antithetical to the First Amendment of the US constitution, which protects speech unless it is made with malice (i.e. in circumstances where the plaintiff can prove publication is reckless, as when an allegation is made without caring whether it is true). So there was a conflict between American and English (and Australian) standards, which became acute when US newspapers and magazines were published in the UK. London became the libel capital of the world – ‘a Town Named Sue’, they called it, as American public figures took action there to protect a reputation they did not possess at home. In a global village, it hardly makes sense for plaintiffs to have different reputations in different parts of town, but US publishers were afraid of the expense of a British libel action: McGeorge Bundy’s famous jibe about Henry Kissinger – ‘Henry doesn’t lie because it’s in his interests, he lies because it’s in his nature’ – was solemnly edited out of books about contemporary politics, and even from Time magazine, before they were published in Britain. I had to advise William Shawcross to make twenty-two cuts in his book Sideshow – the masterful account of Kissinger’s role in the brutal bombing of Cambodia – before it could be published in the UK. Despite the public interest in reading all of a book already acclaimed in the US, English libel law left its publisher with no alternative.
Texan oilman Oscar Wyatt, on whom J. R. Ewing’s character in Dallas was based, went so far as to claim he had a reputation to protect in England because his son had committed adultery with the Duchess of York, and he had dined at Buckingham Palace. (I had his case against Forbes magazine dismissed on the ground that he had no real reputation in the UK, because although he had been invited to dine at the Palace, this happened only because the Queen was away.) If a newspaper had no office or property in London, successful plaintiffs would try to enforce their judgments in America. But not after a New York case in 1992, in which I was an expert witness on the oppressiveness of English libel law: to enforce that law, ruled the judge, would be ‘antithetical to the First Amendment’. But these international plaintiffs did not need libel damages – what they really wanted was to chill any investigations into their misconduct and to stop or punish any publication about it.
After the American forum shoppers came the Russian oligarchs, anxious to exploit English libel law to punish American journals guilty of probing their past. They would stash their wives in Chelsea mansions, their children at English private schools, their mistresses in Mayfair and seek to develop connections (often with second-class royals available for hire) which would give them the standing to sue by claiming close connections with the local establishment and a consequent reputation in the UK that would be damaged by any published exposure, even in an American paper which sold a handful of copies in London. They were men of enormous wealth, profiteers from the break-up of the Soviet Union, and without moral scruple. One, who had stolen money allocated to buy shoes for peasant children, left a message on my answering machine – the sound of machine-gun fire. It was almost impossible to obtain evidence from Russia that was admissible in an English courtroom. With American lawyers Bob Sack and Stuart Karle, and my solicitor friend Mark Stephens, I went to Moscow to investigate an oligarch who had sued the Wall Street Journal, but we found that everything was up for sale (including KGB records) and would be regarded in an English court as tainted evidence.
The most important case of this type was brought by the oligarch Boris Berezovsky. He sued Forbes magazine over an article about his KGB background and corrupt links with Boris Yeltsin. It was written by a conscientious American journalist, Paul Klebnikov: Paul and I had no difficulty putting together a defence proving that Berezovsky was a gangster with a ‘roof’ (i.e. a protection squad) of murderous Chechens. But Forbes had introduced Paul’s article with a comment about the ‘trail of corpses’ behind Berezovsky, and we could not prove he was a murderer. We argued in court that the facts in the article were entirely Moscow-centric, Forbes sold a million copies in the US but only a thousand in England, and that English courts should not arrogate to themselves the role of libel globo-cops for foreigners with little real connection to the country. We lost in the House of Lords, although narrowly (3–2), with the most persuasive judgments the two in our favour.1 The case settled, but a few months later, in July 2004, Paul Klebnikov was assassinated in Moscow. It could not be proved that Berezovsky had directed his execution – Paul was one of a number of journalists killed for looking too closely into oligarchs, and particularly into the biggest of them all, Vladimir Putin, who later turned on Berezovsky and tried to have him extradited. In 2013, Berezovsky was found dead in his Berkshire mansion. It looked, or had been made to look, like suicide. Nobody, including the coroner, could be sure.
Bill Browder, another of my clients, was a successful American businessman based in Moscow, until corrupt police used his company for a tax scam and arrested his lawyer, Sergei Magnitsky, who had blown the whistle on them. Magnitsky was killed in prison, and in his memory Bill devoted his time and money to promoting ‘Magnitsky laws’, which punish human rights violators by preventing them enjoying their ill-gotten gains – their assets in Western banks are frozen and they are denied the right to enter the United States and other Western nations (see chapter 18). Bill’s book Red Notice: A True Story of High Finance, Murder and One Man’s Fight for Justice was a bestseller. The Russians did not come for him with
polonium or a poisoned umbrella, but with a writ for libel – an action brought by one of the policemen Bill had implicated in Magnitsky’s death. The cop hired expensive British lawyers and hunkered down for a trial that would have lasted for months and cost millions, although he was on an annual salary of US$15,000! State money was obviously behind him, as was the KGB. I prepared our defence, using the testimony of Russian exiles; this time I decided not to go to Moscow. Eventually a judge ruled that the policeman had insufficient connection with England to be allowed to sue there, and told him to find his remedy in the Moscow courts. They were, of course, rigged in his favour: they had already convicted Bill, along with Sergei (even though he was dead) on trumped-up charges of fraud. The Russian government tried to have Interpol issue a ‘Red Notice’ against Bill to constrain his travel – hence the title of his book.
I have always, I supposed, been a journalist manqué. At one point in my life, when I was writing for the New Statesman, I considered abandoning the harsh discipline of the law in favour of the louche life of a hack, but I was deterred by the editor (who wanted to retain my inside take on the legal profession). Besides, I looked to the future and figured that the older you are in the law, the more distinguished you are meant to be; it seemed just the opposite with journos. But I spent a lot of time with them, as friends or clients or both, and I had no doubt that helping to create a public interest defence to defamation was a good thing for free speech. An even better thing would be to provide a legal right to protect journalists’ sources of information. When I began practising, English common law provided no help at all: it allowed police to withhold the names of their informers, but nobody else, and for editors this could produce a crisis of conscience. It happened to Peter Preston, a friend who edited the Guardian in the eighties. In 1983, secret documents from the Ministry of Defence came to his office in a brown envelope, revealing the date when nuclear cruise missiles would be placed on Greenham Common, an RAF camp in Berkshire. A women’s protest group was permanently encamped there, waiting for this unpredictable day, so the actual date was big news.
Rather His Own Man Page 39
