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GEOFFREY ROBERTSON QC INTERVIEW - 11th March 2009

One of Barack Obama's first acts in office was to order that the hugely criticised US detention facility at Guantanamo Bay be closed. Widely condemned as a gigantic stain on the US human rights record, Guantanamo's closure within the next year is seen by many as essential to restoring America's international name and reputation. That remains to be seen. The more immediate problem facing both the US and the rest of the world is what to do with the 250 or more detainees still within its confines.

George took up the debate over 'Gitmo', as it has become known, with renowned human rights lawyer Geoffrey Robertson, a former UN war crimes judge and long-standing critic of the notorious detention compound, paradoxically in Cuba.

GEORGE NEGUS: Geoffrey, good to see you again. As a long-time human rights lawyer and advocate, on the human rights meter, how would you rate the whole Guantanamo Bay episode?

GEOFFREY ROBERTSON QC, HUMAN RIGHTS LAWYER: George, it has been a disaster, it's been an utter disaster. It's been a recruiting sergeant for terrorists because it's seen so blatantly as the place where, in the early days under Donald Rumsfeld - between 2002 and 2004 - quite clearly torture was used fairly extensively. After that, they gave up water-boarding and so on, but there was still Alsatians snapping at genitals, there was still utterly puerile forms of torture, like having half-dressed woman come in and try to act sexually, and so on, it was all pretty disgusting. And it's only been towards the end of the Bush administration which bears overwhelming responsibility to this idea that you could have some place, some legal black hole, where international law and the Geneva Conventions didn't apply.

GEORGE NEGUS: So, other than that, not such a bad place to go for a break?

GEOFFREY ROBERTSON QC: Well, you have got to at least give it to the Americans, and those who are anti-American have to face up to the fact that the Supreme Court three times smacked down the Bush lawyers. They said, "Yeah, the Geneva Conventions do apply.” “No, you can't get out of habeas corpus this way."

GEORGE NEGUS: I notice that you wrote soon after Barack Obama had said that he would close it down, you wrote that "His victory is greeted by a world where suddenly the American flag is waving, not burning, in the expectation that he will somehow right the wrongs of Guantanamo and Abu Ghraib." You also thought that he would have no difficulty in closing Guantanamo.

GEOFFREY ROBERTSON QC: There is no difficulty in CLOSING it.

GEORGE NEGUS: Right, but would do you do with the detainees?

GEOFFREY ROBERTSON QC: There are about 250 of them and in a case I think, of about 100, there is ample evidence to put them through an orthodox court. Some of them are thrilled at the idea. In fact, they are saving all this - no need to argue about whether their evidence has been obtained by torture - they WANT to plead guilty. They are thrilled at the allegation that they had some part in 9/11 and they want to wear it proudly as they go to their execution.

This really shows the absurdity of the death penalty with relation to these people. They believe that being executed, preferably by being shot by firing squad, is going to send them straight to paradise.

GEORGE NEGUS: But not all the detainees fall into that category, of course.

GEOFFREY ROBERTSON QC: No, now these are, if you like, the most serious category, the category that can be put on trial and should be put on trial in a proper courtroom. So no problem there. There are also a group of detainees who are believed to be either crushed or reformed and form no real danger, can be sent back to their own countries which won't torture them but will keep them under some sort of surveillance and they are not problematic. The real problem comes with, as you would expect, for keeping people six years without trial - cruelly treated in some cases - obviously these people, if they weren't fanatical, dangerous extremists, to begin with, are going to come out at the end of that process as fanatical, dangerous extremists. And we've had one case - the Americans decided that one fellow called Rasul was utterly harmless, even though the evidence against him, I think, would have required his trial - he was clearly a Taliban bomb-maker - but they misjudged it and sent him back, and he is now leading the Taliban in Helmand Province.

GEORGE NEGUS: That would appear to be the fear of a number of people in a number of nations, Geoffrey, that there will be potential terrorists wandering the streets. In fact, the Pentagon has said that 1 in 10, if they can be believed, 1 in 10 Guantanamo detainees sent back to their countries of origin have become involved in terrorist activities. One, they say, appears to have carried out a suicide bombing, and a spokesman for the Pentagon said 62 former inmates had been linked to terrorism, again. So that's the problem that maybe Barack Obama didn't anticipate.

GEOFFREY ROBERTSON QC: It is the problem. I think it is somewhat exaggerated by the Pentagon, which of course has got to justify Guantanamo Bay. But you don't justify it, it seems to me, in that way. First of all, these people have to be taken back to the American mainland. It's America's problem, and although a number of European countries, like Ireland and Germany, are trying to help out, nonetheless, it is primarily America's problem and America must look at the control orders system that has been developed in Britain. Britain, of course, was always opposed to Guantanamo Bay - took the 10 people who had any connections with Britain back - and is therefore under no moral responsibility because it always condemned Guantanamo Bay.

GEORGE NEGUS: We were part of the coalition of the willing - should this country now consider taking some detainees who won't be acceptable anywhere else?

GEOFFREY ROBERTSON QC: Well, that's a very real moral issue. The Howard government gave unstinting support to Guantanamo Bay in a way that the British government certainly didn't. So you could say that the Australian Government - albeit an new Australian Government, with clean hands, as it were - should give some support. I think the principal responsibility must remain on America. And the way forward, probably, is to develop the control order principle that is used for these people in Britain. Namely, it's a form of house arrest. They are kept under surveillance in their homes for a certain number of hours a day. Their computers and telephones are monitored and so forth, so the danger is reduced to virtually minimum and they are given a degree of freedom with their family - they are not in jail - they are able to live in other respects a normal life.

GEORGE NEGUS: Geoff, do you that it's possible - it seemed like a good idea at the time - but maybe Obama and his advisers, when they came up with this idea so quickly, maybe hadn't thought it through properly?

GEOFFREY ROBERTSON QC: No, they had no alternative. They had to close Guantanamo. You've only got to look at the way America's stocks have risen in the United Nations. America is now being elected. American judges being elected by a majority. There is no doubt that the closure of Guantanamo was a necessary symbolic move, to move out of the appalling period of the Bush administration which actually had encouraged terrorism. But, of course, the problems that Obama will face are internal political problems. He has got to revamp some prisons - military prisons - in California and Oklahoma in order to take them. Well, that's a problem I think he can take pretty much on the chin.

GEORGE NEGUS: Geoffrey, with the wisdom of hindsight - legal hindsight in your case - is it possible that the plus that can come out of things like Guantanamo Bay and Abu Ghraib and Bagram and the whole torture issue and the renditioning issues - is it possible out of that we might need to revisit the whole set of conventions that we are abiding by, even the Geneva Convention itself? Are maybe those things out of date and not capable of handling a situation like the Bush government decided to take on for themselves, and set aside all of those things for the sake of what they wanted to do?

GEOFFREY ROBERTSON QC: That's interesting, because the Bush administration said, "0h, Geneva is obsolete." Of course, PARTS of Geneva Conventions are obsolete. When I was running the UN court in Sierra Leone, I had to draft prison rules and I went through the Geneva Convention. Do you know what the greatest right of a prisoner was in 1949, when those conventions were passed? It was the right to smoke.

GEORGE NEGUS: The right to kill yourself?

GEOFFREY ROBERTSON QC: That's right - yes, by all means update those parts of the Geneva Convention that were drafted on the basis of the British officers mess at Colditz prison. Yes, they are out of date. But the essential basis of Geneva - the duty to treat prisoners with a minimum of humanity are as contemporary and as important as they ever were.

GEORGE NEGUS: Thanks, Geoffrey. Good to talk to you. Unfortunately, we are out of time. But thanks, again. It is always good to talk to you.

GEOFFREY ROBERTSON QC: All the best, George.

GEORGE NEGUS: And he's got a book of his own on human rights in this country out shortly.