So I thought Lula was innocent, but even had I thought him guilty I would have taken the case, because of the outrages he had suffered.4 Sérgio Moro, the ‘investigating judge’, before he turned himself into Lula’s trial judge, had taken liberties that would have had him removed from the case, and indeed from the bench, in Australia and in countries that uphold the rule of law. Moro had authorised interceptions of Lula’s telephone conversations with the former president’s family, his friends and even his lawyer. Under Brazilian law, these must be kept secret. But Judge Moro disclosed the intercept transcripts and gave the audiotapes to the media, which published them with relish. Then Moro’s zeal took him a step too far. He stopped the intercepts, but contrary to his order they continued, and recorded a conversation with the president, Dilma Rousseff. Moro decided he should release these tapes, too, though they had been illegally recorded against his own order. This law-breaking was too much for the Supreme Court, and Moro had to concede ungraciously that his judgment might have been incorrect. The Supreme Court did not remove him from the case.
In the run-up to Lula’s trial, Moro and his team worked hard to create a public expectation of guilt. His chief prosecutor took a ninety-minute slot on national television to explain to the public why Lula should be convicted – Brazil has no contempt-of-court law, nor any that stops prosecutors and judges from attacking suspects before or during their trial. (In the middle of Lula’s trial the prosecutor even published for profit his own book detailing his case against the former president.) Meanwhile, Moro attended the launch of a book that defamed and condemned Lula, signing copies and posing for photographs. He publically congratulated demonstrators who sang his praises in the street, and it was impossible to go into a bookshop without seeing his photograph, in an Eliot Ness pose, on the cover of books and magazines. No judge should behave like this, endorsing the defamation of a man upon whom he is sitting in judgment. Lula was featured on the cover of the O Globo newspaper in faked pictures in prison clothing: these were reproduced on balloons and dolls that were held aloft at demonstrations against the former president. The dolls were mass-produced, but Moro showed no interest in stopping a trade which endorsed his belief in Lula’s guilt.
In most other democracies, a judge who behaved like that would be removed from his victim’s case. But Moro is untouchable – under Brazil’s anomalous criminal procedure, he is the judge at the trial, as well as the judge who has supervised the prosecution. He suspects Lula is guilty because he is a party leader, so he orders investigative procedures against him, then he charges him, and then he tries him, without a jury or assessors, and inevitably convicts him. It is the equivalent of having the policeman who arrests you taking off his helmet, putting on a wig and finding you guilty. Moro is authorised to act like a grand inquisitor (and the system is inherited from the Inquisition): it was no surprise when Moro fulfilled his own prophecy and convicted Lula, jailing him for nine and a half years in July 2017. He will only go to prison if the Appeal Court confirms the verdict, but its senior judge, within a few days of Moro’s decision, described it as ‘impeccable’, so I doubt his chances before judges who appear determined to put an end to the enemy of their class. I will have to stand with Lula for some time yet.
When first invited to Brazil, I did not particularly relish a visit – the Zika virus was at its height and it was not warm enough to swim at Copacabana. I did have a sneaking desire to see whether Rio de Janeiro has a more beautiful harbour than Sydney (on closer inspection, it does not). I am glad I went, however, and have gone back, not only because of the dedication and courage of Lula’s beleaguered defence attorneys, but for the opportunity to survey a legal system constructed in such a primitive way that gives me renewed confidence in our own.
Political corruption is a curse – the seamy side of democracy, by which capitalists steal from the public purse and politicians profit – and it does not matter that the profits are not for themselves but their party (even if it is the Workers’ Party). But the fact is that you cannot combat corruption effectively unless you prosecute it fairly. As the prison-garb Lula dolls and balloons waving in the streets demonstrate, Operation Car Wash turned into lynch law aimed at pulling down the most successful symbol of workers’ rights in Latin America. That is why I think it must be exposed and resisted – not to protect corrupt congressmen or thieving construction bosses, but for the sake of the rule of law, respect for human rights, and protection against prosecutions that have turned into persecutions.
The job that really opened my eyes to the need to combat corruption effectively came years before my work for Lula. In 1990 I was appointed as counsel to a royal commission which uncovered a plot that belonged in a James Bond movie. It was hatched in Antigua, a small tourist island with 365 beaches (‘one for every day of the year’) and an obsessive love for cricket inspired by its legendary batsman, Viv Richards. It was still ruled by the trade unionist who had led it to independence from Britain in 1981, one V. C. Bird. He gave his name to its airport, its main street and many of its enterprises, the wickedest of which was a project of his son, Vere Bird Jr, minister for National Security. He was in the pay of the Medellin Cartel – led by Pablo Escobar and Rodriguez Gacha – who needed some up-to-date weapons for their murders. Vere Jr placed an order with weapons manufacturer Israeli Military Industries for Uzi sub-machine guns and Galil assault rifles, and arranged for them to be shipped to Antigua and deposited in a container at the dock of St John’s, the capital. The night of their arrival on the dock in April 1989, a tramp steamer owned by Escobar slipped into the harbour, loaded the container and took it off to Colombia, where one of the rifles was used to kill a presidential candidate. The assassin dropped the rifle, which was identified as coming from Israeli Military Industries. Colombia accused Israel of trafficking guns to the cartel and Israel pinned the blame on Antigua. Under pressure from the US and Britain, Antigua set up a commission under Sir Louis Blom-Cooper QC, who asked me to act as its counsel to investigate where the truth lay.5
It lay with the utterly corrupt Vere Bird Jr, although this venal and stupid character had been played upon by Israeli mercenaries training Escobar’s terrorist militia in Colombia. They had arranged the gun shipments and agreed with Vere to move the terrorist training to Antigua, using the facilities of the local defence force. The drug-trafficking cartel, in other words, at war with a democratically elected government and busy killing judges and journalists courageous enough to oppose them, would have its vicious army trained by Israeli mercenaries (and a few drop-outs from the SAS) with facilities unwittingly provided by the UK and America, which funded the Antiguan defence force.
Fortunately the conspirators were incompetent and the plot took little time to unravel: their telephone records showed them making calls to Medellin that they could not explain. They had lazily relied on their secretaries to implement the details, church-going women who told the truth on oath when I summoned them to give evidence. Our proceedings were televised, and the people of Antigua were able to see, under cross-examination, just how rotten their government was. They dubbed me ‘the Silver Fox’ because of my hair colour – these days, my sobriquet would be ‘the mangy grey fox’. (At least it was an improvement on ‘the Rottweiler’, the tag given me by the Daily Mail when it was thought I might cross-examine Diana.) The Blom-Cooper report exposed the plot and I was summoned to Washington to explain it to a Senate committee investigating arms trafficking.
The work in Antigua was difficult and dangerous. We lived in a beachfront villa, guarded round the clock by armed police who feared for our safety from cartel hitmen. We enjoyed the calypso competitions, however, an art form which combines political satire and catchy music – clues to corruption on the island were contained in the songs, the bitter journalism of the shanty towns which tourist dollars, creamed off into politician’s pockets, rarely reached.
Corruption remains an endogenous problem in under-developed countries large and small and there is no ‘one siz
e fits all’ solution, although I am convinced that the temptations to which democratically elected politicians so often succumb require an Independent Commission Against Corruption (ICAC) with power to call these politicians to account. Jimmy Wolfensohn, during his time as president of the World Bank, recognised how it operates to deprive countries in the global south of progress and the poor of relief – he invited me to some of the bank’s conferences and I urged more transparency and greater protection for journalists minded to expose such vice. That would at least bring it to the attention of aid donors and charitable governments who could find cleaner recipients for their donations.
A contribution to international law closer to home was made with the help of Professor George Williams. It arose from the coup in Fiji in 2000 led by George Speight. Fiji’s prime minister at the time was an Indian, Mahendra Chaudhry, and there were many Indian MPs. This displeased nationalist indigenous Fijians, who demanded a return to a previous constitution, which had discriminated in their favour. Speight and some armed thugs entered Parliament, assaulted the prime minister and held MPs as hostages while demanding the abrogation of the recently agreed constitution. The army’s strongman, Commander Bainimarama (in a Boris Johnson moment, I pronounced him ‘Commander Bananarama’), had the hostages released and Speight arrested, but then himself purported to abolish the constitution and install a government led by members of the indigenous faction. They drafted another constitution to discriminate in favour of ethnic Fijians, reserving the main positions in government for those of their race. This was merely ‘ethnic apartheid’ said the London QC expensively brought in by the temporary government to defend these actions in court. It was unlawful apartheid, we said, and a breach of an international law against the overthrow of democracy.
We argued the case in the Court of Appeal of Fiji, which resembled an international tribunal. There were two New Zealand judges, one Tongan, the chief justice of Papua New Guinea and Justice Ken Handley of the New South Wales Court of Appeal, who later joked that I had addressed a sixth judge, namely the television camera transmitting the hearing to the public (as almost all the people on the island were watching to see justice done, that would not have been inappropriate). The court rejected the new government’s argument that ‘might makes right’ and ordered it to dissolve itself and bring back Mr Chaudhry, despite its offer to hold elections some time in the future (this is usually an idle promise. Emergency rule becomes a way of life – only Cincinnatus returned to his farm).6
The court’s decision gave support to our contention that although there was no international right to democracy (see China), no military junta or ‘interim’ power that overthrows a democratic government and lawful constitution should be recognised unless it can prove it has popular acceptance and support – which Fiji’s new government did not. At least it complied with the court’s order and self-dissolved, bringing back Mr Chaudhry until he was replaced by another coup and the country ended up under the virtual dictatorship of Commander Bainimarama. I asked the UN to reconsider the use of Fijian troops as peacekeepers and urged President Obama to stop drinking Fiji Water, which had links to the regime. The case helped to create a precedent, a presumption in international law that once a democracy, always a democracy.
This presumption did not appeal to the Australian government when it recolonised Norfolk Island in 2016, destroying the qualified democracy granted by Malcolm Fraser back in 1979. Norfolk Island has only 2000 inhabitants, half directly descended from Tahitian women and men from Fletcher Christian’s Bounty. While Australia looked after the island’s international affairs, its inhabitants enjoyed a good measure of self-government which was uncontroversial and conservative – they forbore from legalising cannabis or euthanasia or same-sex marriage, encouraging instead a community ethos, and custodianship of the Bounty relics and a World Heritage site which displays the relics of the most brutal of Britain’s prisons. After the recolonisation their parliament was locked and the islanders were told to stop singing ‘God Save the Queen’ – where else in the world could that be a revolutionary anthem?
I visited, at their invitation, to consider whether Australia’s recolonisation could be undone. Norfolk Island is a unique place, full of history, with its trademark pine trees framing two of the best beaches in the Pacific, and off its shores I rediscovered the joy of fishing (and the special excitement of getting the catch into the boat before it is taken off the hook by a shark). Of course, its constitutional arrangements were anomalous and idiosyncratic and as such unacceptable to bureaucrats in Canberra, who wanted to turn this unique place into just another seaside town in New South Wales, under that state’s law but without rights to vote in its parliament. This is the problem with bureaucracies – the inability to tolerate difference, even when that difference has deep cultural and historical foundations.
I could not do much for the people of Norfolk, whose forebears had been oppressed by Bligh and were now being crushed by Malcolm Bligh Turnbull, but I found an obscure UN committee on decolonisation which agreed to accept their petition. Their cause has now been taken up by Pauline Hanson, who quotes my opinion with an approval she is unlikely to bestow on many others of mine. If the islanders recover their independence, perhaps she could be lured out of the Senate to end her days less damagingly as their Australian ambassador.
One request for a legal opinion turned into a book. It came from a group of Armenians upset by UK government statements that the evidence about massacres of Armenians in 1915 at the hands of the Ottoman Turks was ‘not sufficiently unequivocal’ to amount to genocide. What did I think? I had to warn the group that as an independent QC I would have to make up my own mind on the issue and that no matter how much they paid me (in fact, very little) I might well decide that the killings did not fit the definition of ‘genocide’. They were prepared to take the risk, and it was a pleasure to have the excuse to immerse myself in history books as well as law books to come up with the answer.
There was no doubt at all: in 1915 the Ottomans solved ‘the Armenian Question’ by eliminating the Armenians, a Christian enclave they viewed as likely to support Britain rather than the Germans, with whom the Turks had opportunistically allied in the war. Some two million Armenians lived within Ottoman borders, and the Young Turk government killed over half.
There is an important link with Australia: the imminence of the Anzac landing was used by the government in Constantinople as the trigger for its lethal round-up of Armenian leaders and intellectuals on the night of 24 April 1915. It murdered most of these men – politicians, professors, lawyers and the like – and conscripted able-bodied males, who were worked to death or shot. Then it ordered their women, children and old men to march without food and medicine through the desert to places we only hear of now because they have recently been occupied by ISIS. Hundreds of thousands of these people died from starvation and disease as the government seized their homes and businesses and confiscated their property.
Since this extermination of part of a race on religious or racial grounds obviously satisfied the Genocide Convention definition, why was the UK government denying it? The answer was found in secret Foreign Office records, which with some difficulty I forced the FO to disclose under the Freedom of Information Act. The FO told ministers – correctly – that Turkey was ‘neuralgic’ about the genocide, and that ‘HMG is open to criticisms in terms of the ethical dimension. But given the importance of our relations (political, strategic and commercial) with Turkey … the current line is the only feasible option.’7
In other words, this had become ‘An Inconvenient Genocide’ (the title of my book): Turkey’s ‘neuralgia’ and its strategic and political importance meant the truth could not be admitted.
When the New South Wales Parliament recognised the genocide, the Turkish government threatened to ban its members from attending the ceremony for the one hundredth anniversary of Gallipoli, so to prevent any further upset Julie Bishop assured the Turkish ambassador that genocide
recognition by Australia was out of the question. It is a pity she did not consult the letters home from Australian prisoners of war in 1915, archived at the Australian War Museum – they express gratitude to the Turkish soldiers for their own treatment but wonder why Armenians were being taken away to be shot.
I hope that one day an Australian minister will travel to Yerevan, Armenia’s capital, to join its commemoration of the genocide on 24 April, then fly on to Gallipoli to commemorate Anzac Day on the twenty-fifth. Although, given Turkey’s reaction to any country which recognises the Armenian genocide, the minister’s plane would not, as matters stand at present, be allowed to land.
My absorption in Armenian history led me to take up the cause of its people who live in Nagorno-Karabakh, a delightful little country in the clouds, its mountain ranges full of ancient Christian churches (the Armenians were first to convert, back in 303 AD). Azerbaijan claims its land, and has outrageously threatened to shoot down any planes that land at its airport, so I have to take a bumpy six-hour car trip skirting Mount Ararat (resting place of Noah’s legendary Ark) and dodge bullets fired at random by the Azeri army. Karabakh is one of those small countries (there are several of them in this region) whose right to exist is opposed by powerfully armed neighbours, and for which the international community has dismally failed to broker peace. The background to the conflict is too complex even to sketch, but the foreground is apparent: when I visit I see young men and women whose lives are put on hold while they serve compulsorily for years in the armed forces. They are not tortured, and only occasionally shot, but the waste of their young lives for want of a political solution is shameful.
Rather His Own Man Page 43
