Chapter by Bill Bowring to be published in German in the collection of articles “VDJ – Battle over the law Legal-political struggles in 50 years (from the foundation of VDJ in 1972)“, for the 50th Anniversary of VDJ – VDJ is the Haldane Society’s German sister organisation, Vereinigung Demokratischer Juristinnen und Juristen, https://www.vdj.de/vdj/
I have been asked to contribute to this anniversary collection because of my role as President of the European Lawyers for Democracy and Human Rights (ELDH) for many years now. I am a member of the Haldane Society Socialist Lawyers (Haldane) in England, which is, together with VDJ, a founder member in 1993 (with other national associations) of ELDH. I am Haldane’s International Secretary.
I start with an introduction to Haldane and VDJ. Second, I examine the common history of VDJ, Haldane, and ELDH in the International Association of Democratic Lawyers (IADL). Third, I describe my own introduction to International Law, International Human Rights Law, and the International Law of Armed Conflict on a Mission to Israel and Palestine in 1988. My fourth section describes the birth of ELDH, and its continuing relationship with IADL. Fifth, I turn to the way in which, with Thomas Schmidt as General Secretary, has gone from strength to strength since its birth in1993, and now has members in 22 European countries. Finally, and sixth, I present the conferences which are the high point of ELDH activity, and which take place in many countries and focus of the most important topics for European-wide solidarity.
Haldane and VDJ
Haldane, www.haldane.org, has a relatively young (20 and 30 year olds) leadership, and some 600 members, mostly practising lawyers, in England. Haldane was founded in 1930. In 1980, to mark the Society’s 50th anniversary, Nick Blake (who later became a High Court Judge, and is now retired, as Sir Nicholas Blake) and Harry Rajak (Emeritus Professor of Law at the University of Sussex) wrote “Wigs and Workers”, a history of the Society’s first 50 years. The Society was named after Lord Haldane, in 1924 the first Labour Party Lord Chancellor (Minister of Justice), and it was the first organisation of lawyers committed to supporting the interests of the Labour Movement.
VDJ, founded in 1972, is much younger than Haldane. Professor Gerhard Stuby, General Secretary of the International Association of Democratic Lawyers (IADL), of which more below, was the first Chair of VDJ. VDJ has always in fact proclaimed its independence from any political party or national government. Professor Stuby, born in 1934, was the author, with Professor Norman Paech, of the Handbook on International Law and Power Politics,one of the most important texts for international legal solidarity, which went into athird edition. When he died, on 24 August 2020, IADL published on its website an account of his life as an “extraordinary lawyer”.[1]
A common history: the IADL
VDJ and Haldane also share an international and internationalist history.
Haldane was a founder member of IADL, on 24 October 1946. IADL was launched by a gathering in Paris of “lawyers who had survived the war against fascism and had participated in the Nuremberg Trials”. Rene Cassin, a drafter of the Universal Declaration of Human Rights, became IADL’s first President.[2]
IADL was financed by subscriptions from the Association of Soviet Lawyers and the lawyers associations of the Central and Eastern European states, by the National Lawyers Guild USA, and by its members in the Global South, including the Associations of American Jurists (AAJ), the Democratic Lawyers of South Africa (NADEL). And their counterparts in India, Vietnam and Japan. Its Western counterpart, the International Commission of Jurists (ICJ), was in part financed by the CIA. The USSR and the Algerian liberation movement, the FLN, paid for the headquarters of the IADL, a building at 263 Avenue Albert in Brussels, with a salaried member of staff, and continued to pay until the collapse of the USSR in 1991.
Haldane was, as I mentioned above, a founder member of IADL, and, as a new member of Haldane, I attended the 40th anniversary conference of IADL at UNESCO in Paris in December 1986. In that year all countries of the Soviet Block were represented by their official lawyers’ organisation, especially the USSR and the GDR. There were large delegations from India and from the Middle East. I witnessed a noisy clash between the Belgian delegation, which wanted to move away from Cold War rhetoric, and the Arab Lawyers Union, which insisted on the use of the word “imperialism”.
My introduction to international legal solidarity: Israel and Palestine
My first international task for the IADL took place on 27 June to 3 July 1988, when, with the advocate François Bailly, President of the Belgian Democratic Lawyers (now members of ELDH), I undertook a mission to the Occupied Palestinian Territories in the West Bank and the Gaza Strip.[3] The First Intifada (Uprising) of the Palestinian People commenced later that year, on 7 December 1988.
A particular focus of our mission was the closure by Israel of the In’ash Al-Usra womens centre in Al-Bireh, near Ramallah. This charitable Society, with 152 employees, had helped 34,000 people; 1,300 families each week with money, 123 girls 4-16 years old who lived at the Society; 4,800 women and girls who made embroidery by hand; and 150 children cared for in a day-care kindergarten.
The Society’s Centre was raided on 8 June 1988 during curfew hours by Israeli troops, shortly before our arrival in the West Bank. The founder and Director of the Society, Mrs Sameeha Khalil, aged 65, was questioned. On 20 June 1988, again during curfew, at 0100 in the morning, Mrs Khalil, was summoned to the Society’s building, where she was served with an order of closure of all parts of the building except the Day Care Centre and Home, until 16 June 1990. The doors of all the money raising parts of the building, workshops and training rooms, and the kindergarten kitchens were welded shut, as we saw with our own eyes. Mrs Khalil was charged with incitement and sedition. The evidence amounted to: an anti-semitic video tape allegedly found in the Society, of which all knowledge by Mrs Khalil or the Society was denied; a box of Palestinian flags dating from 20 years previously; and Mrs Khalil’s openly expressed support for the PLO.
There were two other particularly memorable moments in our visit.
While visiting the refugee camp in Rafah, at the border of the Gaza strip and Egypt, François Bailly, dressed as always in a three piece suit, with waxed moustaches, and me, were standing with a crowd of people on the ruins of a Palestinian home which had been illegally demolished by Israeli forces, as a reprisal for children throwing stones. Suddenly, the crowd vanished, and François and I saw an Israeli tank coming towards us. Without hesitation, François pulled out his Belgian passport, and shouted “In the name of the King of the Belgians, I command you to stop!”. The tank stopped. The crew must have thought they were hallucinating.
Later, we were visiting Palestinian organisations in Nablus, in the north of the West Bank. We were walking in a crowded street at the top of a hill, surrounded by shoppers, when suddenly we were once more alone. Bullets were flying past us. At the bottom of the hill we saw Israeli soldiers shooting with live rounds towards us (probably not at us). Like everyone else, we dived into a doorway. Later that day, the road back to Jerusalem was blocked, and our driver had to cross farming fields, where at each gate a Palestinian child would tell us if it was safe to proceed.
Not only did our Mission contribute to knowledge of the circumstances leading up to the First Intifada, and build solidarity with organisations such as B’Tselem, the Israeli Information Center for Human Rights in the Occupied Territories[4], and Al-Haq, the independent Palestinian non-governmental human rights organisation based in Ramallah, West Bank; established in 1979 to protect and promote human rights and the rule of law in the Occupied Palestinian Territory[5]: it had a profound affect on me.
The birth of ELDH
When the Berlin Wall fell in 1989, and the USSR collapsed in 1991, both VDJ and Haldane became increasingly discontented with the policy and outlook of the IADL. They were joined by the French Democratic Lawyers, led by Professor Monique Chemillier-Gendreau. VDJ, which had as noted above, been founded as a German affiliate of IADL (Professor Gerhard Stuby being at the same time VDJ’s founding Chair, and also Secretary General of IADL) gradually grew away from IADL, though it never formally left.
As a result the ELDH was founded on 1 May 1993 in Paris. There were also other founding members, notably the Bulgarian, Italian, Romanian, Swiss and Turkish associations. The largest of the associations which founded ELDH in 1993 is the Progressive Lawyers Alliance, ÇHD, in Turkey, founded in 1974.
There was no complete break with the IADL. Intense discussion at the Annual Meeting of the ELDH in Sofia, Bulgaria, led to the following insertion in the Statute of ELDH:
“2.2. The objectives of the Association shall be realized through:
c. The development of relations between European lawyers as well as between lawyers of other continents and their organizations, and the development of relations with the INTERNATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS and other national and international organizations which have as their goal the defense of human rights;”[6]
In fact, Haldane and several other ELDH members continue to be affiliates of the IADL, as well as ELDH. Delegations have attended the Congresses of IADL, held every four years.
The XIV Congress of IADL took place in Capetown, South Africa, in 1996, with Nelson Mandela in attendance. The Haldane delegation of 45 lawyers, organised by Keir Starmer, now Leader of the British Labour Party, was the largest single delegation to a large and representative congress. I wrote a full report for Socialist Lawyer, the Haldane magazine, and it is to be found on the IADL website.[7] The Congress worked in four Commissions. Commission Ill, on “International Interdependence” was chaired by Dr. Bilal Hasan Minto of Pakistan, and heard papers by Prof Nario Tanaka of Japan, by me (on “France, Polynesia, Nuclear Testing, the World Court: Law and the Public Conscience’), by Jitendra Sharma of India on the NPT, and by others. All the papers delivered at the Congress and more information are to be found in a volume edited by Lennox Hinds, Professor of Law at Rutgers University in the US, and second president of the National Conference of Black Lawyers.[8]
The ELDH, from strength to strength
Meanwhile, ELDH, with Thomas Schmidt (VDJ) and me (Haldane), as members of its leadership, although we are now nearly 30 years older, has gone from strength to strength, with members in 22 European countries. ELDH has more or less active associations in Bulgaria, England, Germany, Greece, Italy, Northern Macedonia, Russia, Serbia, Spain (Basque Country and Catalonia), Switzerland, Turkey, and Ukraine. In a recent constitutional amendment, based on the principle of gender equality, ELDH now has co-Presidents (me and Barbara Spinelli, Italy) and co–General Secretaries, (Thomas Schmidt, Germany, and Ceren Uysal, Turkey). Through the initiative of Thomas Schmidt and Jan Buelens (Belgium), ELDH has created an online network European Lawyers for Workers (ELW).
I am particularly proud of the fact that ELDH now has active members in Russia, in the Centre for Social and Labour Rights, and Lawyers for Workers Rights[9], which works closely with the Russian independent trade unions, KTR (Confederation of Labour of Russia)[10]. Yury Varlamov, a Russian member of ELDH’s Executive Committee has been elected the Chair of the Teachers’ Union “Uchitel”.
The ELDH Executive Committee meets online monthly, and ELDH is actively engaged in solidarity work in Europe and beyond.
A particular focus of ELDH’s work in the past decade has been solidarity with our persecuted and imprisoned colleagues in Turkey, through our large member associations, ÇHD (Progressive Lawyers) and ÖHD (Lawyers for Freedom). ELDH members from several countries have taken part in trial observations and prison visits in Turkey, and have attended conferences and taken part in protests. Thomas Schmidt has led solidarity work with the self-determination struggles of the Sahrawis in Western Sahara. ELDH has increasingly participated in solidarity with Basques and Catalans, investigating the transfer of prisoners in the Basque Country, observing the trials of Catalan politicians, and taking part in solidarity meetings in London and Barcelona. A recent focus at the time of writing has been activity, at the invitation of Sinn Fein, in solidarity on a number of issues relating to Northern Ireland. An ELDH delegation took part in COP26 in Glasgow in 2021 and there is an important commitment to Climate Justice.
The range and depth of ELDH engagement in international solidarity can be shown in recent activity. Interventions in the past year have included the Day of the Endangered Lawyer, in many countries, focusing on 24 January 2022 on Colombia[11]; a conference on 28-29 October 2021 on Labour Rights and the Digital Transition, which ELW helped organise[12]; the first International Fair Trial Day in 2021 and Ebru Timtik Award – she died in a hunger strike in protest against the absence of a fair trial in Turkey[13].
ELDH has published Statements on “Catalangate” on 25 April 2022[14]; on the Western Sahara Crisis, on 9 April 2022[15]; against the banning of the Turkish HDP, on 4 April 2022[16]; on the failure of the United Kingdom to investigate and prosecute murders in Northern Ireland, on 25 March 2022[17]; on the Russian invasion of Ukraine, on 5 March 2022[18]; and many more, at a similar tempo.
ELDH conferences over the years
Until the Covid 19 Pandemic the ELDH Executive Committee, or EXCOMM, has met twice a year each time in a different European city, and attended by comrades and colleagues from all over Europe. These meetings have always included a dinner hosted by ELDH, and often a conference has taken place.
These conferences are the highpoint of ELDH activity.
ELDH’s General Secretary, Thomas Schmidt is a trade union lawyer, active with the German Union Ver Di, and has been instrumental in founding the European Lawyers for Workers (ELW). On 16-17 October 2009 ELDH together with the European Democratic Lawyers (AED/EDL) and the Progress Lawyers of Belgium, organised at the Maison du Barreau in Paris an International Conference “The Evolution of Labour Law in Europe under the Pressure of the (Neo)Liberal Economy”. There was a splendid line-up of authoritative speakers from several European countries.
My own research interest, with many publications, concerns the history of the right of nations, then peoples, to self-determination. The struggle for self-determination started with Marx and Engels in the second half of the 19th century, fighting for the independence of Poland from the Russian Empire, and Ireland from the British Empire. Lenin, in the period leading up to WWI, theorised the right, and after the Russian Revolution, put it into practice with the break-up of the Russian Empire, independence for Finland, Poland and the three Baltic states. He enshrined it in the first constitution of the USSR, with a right of Union Republics to secede, and a federative structure. Lenin’s last struggle with Stalin concerned Lenin’s support for independence for Georgia, even under Menshevik government, opposed by Stalin, denounced by Lenin as a “Great Russian Chauvinist”. All reviled and denounced by the Russian imperialist Vladimir Putin, and exemplified in the colonial war in Chechnya from 1999, the invasion of Georgia in 2008, the annexation of Crimea and support for rebels in the Donbas in 2014, and the murderous invasion of Ukraine in February 2022.
For many years I have been active in solidarity against the continuing repression of Irish nationalism by Britain. Not so many years after Ireland’s bloody war of independence from Britain in 1919 to 1921, there was a return to terrible violence from 1969, with the occupation of Northern Ireland by British troops, and the massacre of Irish civilians by British paratroopers in Bloody Sunday, on 30 January 1972.
With my colleague Professor Colm Campbell I played a key role in the foundation of the Transitional Justice Institute (TJI) at Ulster University, in 2003. After three years hard work TJI together with ELDH organised a splendid conference “Peoples in Motion: Self-Determination and Secession”. This took place on Saturday 5 June 2010 at Ulster University. The speakers included Urko Aiartza Azurtza (Basque Country); Prof. Bill Bowring (London); Prof. Christine Bell (TJI, Ulster); Prof. Colm Campbell (TJI, Ulster); Dr Catriona Drew (SOAS, London); Dr Haluk Gerger (Turkey); Richard Harvey (Barrister, London); Prof. Hassan Jouni (Lebanon); Prof. Hèctor Lopez Bofill (Catalonia); Dr Fabio Marcelli (ISGI, Italy); Prof. Fionnuala Ni Aolain (TJI, Ulster); Dr Ephraim Nimni (QUB, Belfast, a Jewish Anti-Zionist and Pro-Palestinian); Prof. Norman Paech (Germany); and a speaker from Western Sahara. The programme and some of the papers can be found on the ELDH website, as well as a link to an article in the German newspaper Junge Welt.[19]
On the Sunday Professor Campbell organised a Political Tour for Speakers and Delegates. : We were guided up the Falls Road, in a Nationalist district, where Irish Tricolour flags and Palestinian flags fly, and there are rebel murals, by the Republican ex-prisoner group “Coiste na nIarchimi”. Our guide had spent some years in prison for shooting British soldiers during the armed conflict from 1969 to 1998. There is still a high wall separating the nationalist and loyalist districts, but a gate between them is now open, and we were guided down the Loyalist Shankill Road, to see the Shankill Road murals, by a former prisoner of the Loyalist ex-prisoner group “EPIC”. We saw not only Union Jacks and Ulster terrorist flags, but many Israeli flags.
This exciting conference was an important contribution to the ongoing Peace Process in Northern Ireland. This was especially since in the Good Friday Agreement of 1998 the UK Government for the first time explicitly recognised the “Right of the People of the Island of Ireland to Self-Determination”. This means that once there is a majority in Northern Ireland for unifications with the Republic, the UK government will not stand in the way.
Also in 2010, on 12-13 November 2010, ELDH was hosted by our members the Bulgarian Union of Lawyers, for an international conference in Sofia “After the Treaty of Lisbon – European Union Closer to the Citizens?”. We had the support of the Representation of the European Commission in Bulgaria. Among the speakers were: Alexandar Arabadjev (Judge at the European Court of Justice, Luxemburg), my colleague from Birkbeck, Prof. Michelle Everson (she is German, from the Wuppertal), Christo Christev (Bulgaria, Assistant), and Prof. Andreas Fisahn, from Bielefeld, Germany.
On 21 May 2011, ELDH and our Greek colleagues “Alternative Intervention of Athens Lawyers” organised a conference at the Athens Bar Association Conference Hall, in Athens “The Legal Impact of the European “Debt” Crisis. Prof. Dr. Andreas Fisahn again participated. Papers are to be found on the ELDH website.[20]
Also in 2011, we moved from Athens to Genoa in Italy, for “Ten Years of Attacks on Fundamental Rights – The Role of Lawyers”. Speakers included Haidi Giuliani (mother of Carlo Giuliani, killed 10 years previously by the police at the Anti-G8-demonstration in Genoa). There was also a Round Table “The evolution of repression against social movements and the response of lawyers in different countries”, with speakers including Sönke Hilbrans, Berlin (Republikanischer Anwältinnen- und Anwälteverein, RAV).
In February 2012 Haldane, with ELDH and Amnesty International, organised a large conference in London in the Amnesty International Human Rights Action Centre, on “Defending Human Rights Defenders”. The background was that post 9/11 and in an age where States continually seek to control their citizens and curtail any challenge to their authority, the challenges faced by those working on behalf of vulnerable people are escalating. The conference focused on protecting those activists who risk their lives for their commitment to social justice and who often face attacks from the very government who should be protecting them and further their objectives. Six delegations of human rights defenders from some of the most challenging civil societies around the world were invited: Colombia, Palestine, the Philippines, Swaziland, Turkey, and the Caucasus region.
Every year the VDJ awards the Hans Litten Prize, in memory of the heroic anti-Nazi lawyer, who cross-examined Hitler for three hours, and died in Dachau concentration camp in 1938. 15 September 2012, held in the Literaturhaus, Fankfurt (Main), was also the occasion of the 40th anniversary of the VDJ.
The prize was awarded to the fearless English solicitor and human rights activist Gareth Peirce, now 82 years of age and still going strong. She has worked on a number of high-profile cases involving allegations of human rights violations, especially in relation to the armed conflict in northern Ireland. Her work with Gerry Conlon and the “Guildford Four” – wrongly convicted of bombings carried out by the Provisional Irish Republican Army – was chronicled in the film “In the Name of the Father” (1993), in which she was portrayed by Emma Thompson.
In April 2013 I was invited to speak at a big, and unforgettable, conference in Bremen, organised by IALANA with ELDH and VDJ, with many other associations, on “Quo vadis NATO? – Challenges for democracy and law”. German speakers included Otto Jäckel and Prof. Dr. Andreas Fischer-Lescano, and also Dr. Hans-Christof Graf von Sponeck (Müllheim), Prof. Reinhard Merkel (Uni Hamburg), and Prof. Dr. Norman Paech (Universität Hamburg).
For many years I have been a lecturer in the Summer School on “EU and Democracy” organised by the Universities of Bologna, Belgrade, and Johns Hopkins University in the USA, at Herceg Novi in the Gulf of Kotor in Montenegro. My contacts helped to organise a conference in Belgrade at the ”Centre for Cultural Decontamination”, a centre of opposition to Milosevic, on 6 June 2014. The conference was entitled “Human Rights and Democracy in the context of EU Enlargement – Western Balkan Perspectives”, and was organised by ELDH and Lawyers for Democracy, with support from YUCOM, the Lawyers Committee for Human Rights. There were speakers from Bosnia and Herzegovina, Bulgaria, Croatia, England, Germany, Greece, Italy, Macedonia, Montenegro, Serbia, Slovenia, and Turkey.
The reader will have noticed that women’s rights had been somewhat neglected in the ELDH’s conferences, and on 28-29 November 2014 the Haldane Society and Haldane Feminist Lawyers, with ELDH, organised at South Bank University in London a large conference “Women Fighting Back: International and Legal Perspectives”. There were two magnificent keynote speakers, Prof. Rashida Manjoo (South Africa), UN Special Rapporteur on Violence against Women (2009-2015), and Angela Davis (USA), Distinguished Professor Emerita in the History of Consciousness and Feminist Studies Departments at the University of California. Founding member of Critical Resistance. International panel discussions focused on: “Migrant and Refugee Women”; “Violence against Women”; “Women in conflict and peace”; “The State and Women’s Bodies; and Women in work”.
In November 2016 ELDH supported a conference convened by IADL and by the Portuguese Association of Democratic Jurists (PADJ), at the University of Lisbon in Portugal, celebrating the 50th anniversary of the adoption by the General Assembly of the United Nations of the International Covenant on Social. Economic and Cultural Rights and of the International Covenant on Civil and Political Rights, “The International Covenants on Human Rights (ICESCR and ICCPR) adopted by the UN on 16 December 1966: historical significance; political and legal impact; and fortunes”.
The new circumstances in Turkey since the failed coup in 2016, and the State of Emergency declared by President Erdogan, were the background for a continuing series of conferences in solidarity with our Turkish colleagues. On 14-15 January 2017, together with my colleague Pascale Taelman, the President of EDL-AED, I opened the large conference, at which many Bar Associations of Turkey were represented, “The judicial system under the state of emergency in Turkey”.
Sessions focused on “The rights, duties and the repression faced by Bar Associations and their members under State of Emergency”, “Under the State of Emergency: The guarantees for the independence, impartiality of Judges”, “Being a lawyer under the State of Emergency”, “The legislative prerogative under the state of emergency and parliamentary immunity”, and “Practices of Anti-Terror, State of Emergency and State of Siege in Turkey and in the World”. The conference was supported by IADL, by MEDEL, NRV Neue Richtervereinigung (New Judges Organisation), IDHAE World Observatory for Defense Rights and Attacks Against Lawyers, Barcelona Bar Association, Padova Bar Association, and Palermo Bar Association; by the Adana, Adıyaman, Ağrı, Ankara, Antalya, Batman, Bingöl, Bitlis, Diyarbakır, Hakkari, Muş, Siirt, Şanlıurfa, Şırnak, Tunceli, Van, Bursa, Iğdır, Kars-Ardahan, and Mardin Bar Associations; and by Democratic Judges Associations, Syndicat of Judges, Lawyers and Human Rights Defenders Without Borders in Turkey, and the Association of Forensic Science Experts.
ELDH did not forget about workers’ rights. On 12-13 May 2017 the Italian trade union CGIL, together with ELDH and ELW organised a conference in Florence, Italy, on “Social Dumping” in Europe “Sozial-Dumping und aktuelle Herausforderungen für das Arbeitsrecht in Europa – Die Initiative zurückgewinnen!”
Meanwhile, we strengthened our activities in post-coup Turkey.
On 22-24 September 2017 we returned to Turkey to the first of a series of conferences by the second Turkish member of ELDH, ÖHD, Lawyers for Freedom, under the auspices of their International Human Rights Academy of the Aegean (IHRAA), at the beautiful Nesin Maths and Philosophy Village at Şirince, in the mountains near Izmir. The Autumn Workshop of 2017 is one of these activities of the IHRAA. “Academic Freedom” was chosen as the topic of this year. Turkish academics had been faced with all types of oppression during 2017. Most of the speakers of the workshop were among those who lost their positions in the universities and other institutions.
Brexit, the nationalist and xenophobic movement, supported by just over half of those who voted, to take the United Kingdom out of the European Union, which it joined in 1972, has been a seismic shock to the whole continent. Haldane was proud to host with ELDH and the Institute of Employment Rights, on 11 November 2017, at the headquarters of Unite, the second largest trade union in the UK (with 1.4 million members), which also hosted the conference, an international conference “European Union, Brexit – the future of workers’ rights”.
There were four sessions, with speakers from England, France, Germany, Italy, and a trade union lawyer from Russia on a recent victory in the Russian courts, in a case concerning discrimination against Aeroflot cabin crew. The sessions were: 1) “The Future of Trade Union Rights, social rights (collective labour law, for a social Europe instead of a “social pillar”); 2) How to create more security for workers (concepts on national and European level for individual labour law for domestic and migrant workers); 3) How to defend the rights of refugees and migrants. The impact of Brexit and EU policy.; and 4) European Democracy and human rights – between (Br)Exit and the rule of exception (How to develop European Democracy, how to fight non-democratic developments in EU states).
Speakers from Germany included: Klaus Lörcher, Germany, former ETUC legal advisor, former Legal Secretary of the Civil Service Tribunal of the European Union: “The role of the European Social Charter for the protection of (migrant) workers‘ rights, in particular after Brexit”; Karl Kopp, Director of European Affairs, PRO ASYL, Frankfurt/Main: Perspectives for the defence of Human Rights for Refugees in Europe. “The impact of Brexit”; and Prof. Andreas Fisahn, Bielefeld: “The lack of democracy and the future of the union”. There were speakers for and against Brexit.
On 15-16 March 2018, the Permanent Peoples’ Tribunal on Turkey and Kurds, took place in Paris. This session of the PPT was proposed by the IADL, the ELDH, Mafdad, an organization based in Germany of Kurdish and German Lawyers, and the Kurdish Institute of Brussels. The judges included Prof Norman Paech. The Belgian advocate, Jan Fermon, a member of ELDH, served as Prosecutor. I was the first witness, on the question of self-determination for the Kurds. The Judgment was delivered at the European Parliament in Brussels on 24 May 2018, and is a very significant act of solidarity with the Kurds.
ELDH returned to Turkey on 7-9 September 2018 for the well attended conference at the Istanbul Bar Association “The normalization of the state of emergency and the situation of judiciary in Turkey”, organised by a number of Turkish Bar associations, and by the Association of Democratic Judiciary – Syndicat of Judges; European Democratic Lawyers – AED; ELDH; the Day for Endangered Lawyers Foundation; IADL; and Consiglio Nazionale Forense.
On 20 October 2018 this was followed by a conference, sponsored by ELDH, in Berlin: “25 Jahre PKK-Verbot – 25 Jahre Repression und Demokratieabbau im Dienste der deutschen Außenpolitik”.
The Second International Human Rights Academy of the Aegean (IHRAA), took place at the Nesin Maths Village, Şirince, Izmir, Turkey, on 2-4 November 2018, with the theme: “International Human Rights Regime in Crisis”. It was organised by the Platform of Lawyers for Freedom ÖHP; IADL; ELDH; and the Solidarity Academy of Izmir. I spoke, with speakers from Catalonia, England, India, and Japan.
The Second Conference of Mediterranean Lawyers took place in Naples on 19 May 2019, organised by the Italian Association of Democratic Lawyers, and supported by ELDH and IADL. The theme was “Self-determination, human rights and migration”. The Conference heard lawyers from Catalonia, Greece, Iraq, Italy, the Kurdish People, Lebanon, Morocco, Palestine, Spain, Syria, Tunisia, Turkey, and Western Sahara; Luca Casarini, Head of Mission ship “Mediterraneo”; Laura Marmorale, Counsellor for Migration, Naples Municipality; with a conclusion from the Italian lawyer Michela Arricale.
The Third International Human Rights Academy of the Aegean (IHRAA), took place at the Nesin Maths Village, Şirince, Izmir, Turkey, on 18-20 October 2019, with the theme “Law and Human Rights in Oppressive Regimes”. I spoke, together with human rights lawyers from several countries.
On 23 April 2020 Haldane presented, with the support of ELDH and IADL, an online, Zoom, conference “Persecution of Lawyers in India: building a network of international solidarity”. The speakers were: Indira Jaising – Senior Counsel, Supreme Court of India. Lawyers‘ Collective; Mihir Desai – Senior Counsel and defence lawyer, High Court of Mumbai. Human Rights Law Network; Professor Jagmohan Singh – Association for Protection of Democratic Rights, Punjab. This brilliant conference was organised and chaired by Professor Radha D’Souza, University of Westminster, London.
Haldane, with the support of ELDH, organised an online conference with the title “Hostile Environments” on 24 October 2020. The well-attended conference brought together activists, academics and lawyers joining in the fight for migrant and climate justice, in solidarity against the racist and classist systems standing in their way. There were four panels: 1) “Yarl’s Wood: learning the lessons from a history of resistance”; 2) “Unlawful pushbacks in the Mediterranean and English Channel”; 3) Climate Justice and Migration”; and 4) Organising to win: what’s the role of legal sector workers?”.
On 5 April 2021 many lawyers’ organisations including ELDH supported the “International Memorial Event for Ebru Timtik: A life dedicated to the struggle”. On the Day of Lawyers (Turkey), the international legal community gathered together to commemorate Ebru Timtik who passed away after a 238-days hunger strike with the demand of a fair trial for all people who are suffering under the ongoing injustice in Turkey. “Ebru Timtik will never be forgotten and as lawyers, we will never stop fighting for the right to a fair trial.”
Worker rights were again the focus of the conference held in Brussels and online on 28-29 October 2021 “Labour rights & the digital transition”, organized by the ETUI in cooperation with the European Lawyers for Workers Network (ELW Network), and ELDH. The conference was opened by Thomas Schmidt, and the sessions were: 1) “Bringing the Algorithms to Court”, moderated by Ruediger Helm (Lawyer, ELW); “The Yodel case and its implications for platform workers’ rights”, Lord John Hendy QC (Barrister, UK); “Defending collective rights of platform workers in courts”, Carlo De Marchis (Lawyer, Italy); “The contribution of the GDPR to protect platform workers’ rights”, Anton Ekker (Lawyer, The Netherlands); “Socializing digital work via the courts?” Antonio Aloisi (Assistant Professor, IE Law School); 2) “Collective Rights in the Digital Economy”, moderated by Aline Hoffmann (Head of Unit, Europeanisation of Industrial relations, ETUI); “Protecting platform workers’ rights in the digital economy”, Silvia Simoncini (National secretary NidiL CGIL); “Raising activism among platform workers”, Martin Willems (United Freelancers, acv-csc); “Collective bargaining to address negative impact of labour market monopsony”, Séverine Picard (Progressive Policies); “Unions’ strategy to contrast the market power of digital platform”, Annika Flaten (Director Commerce, UNI Europa)
Conclusion
In conclusion, I always insist that lawyers are not and cannot be a revolutionary vanguard, and law for the most part is not emancipatory. But the lawyers of VDJ, in its 50 years of existence, and Haldane, for nearly 90 years, and ELDH since 1993, with our many colleagues in 22 countries, have had the privilege of putting their skills at the service of the labour movement, and of democratic and human rights struggles internationally. We may well have made some difference.
[1] https://iadllaw.org/2020/10/iadl-mourns-gerhard-stuby/
[2] https://iadllaw.org/history/
[3] See Bill Bowring “Zionist Repression in the Occupied Territories” The Marxist Monthly v.1, n.7 (1988) p.18-26; and our report at https://primarysources.brillonline.com/browse/human-rights-documents-online/report-of-the-mission-of-enquiry-to-the-occupied-territories-of-the-west-bank-and-the-gaza-strip-francois-bailly-bill-bowring-27-june-to-3-july-1988-24-pp;hrdhrd01380160, behind a pay-wall
[4] https://www.btselem.org/about_btselem
[5] https://www.alhaq.org/about-alhaq/7136.html
[6] https://eldh.eu/en/ueber-ejdm/satzung/
[7] https://iadllaw.org/1996/04/1996-haldane-society-report-from-cape-town-congress-of-the-iadl/
[8] https://bbowring.com/2022/04/29/challenges-for-law-and-lawyers-in-the-next-millenium-democracy-in-domestic-and-international-law-final-report-of-the-xiv-congress-of-the-international-association-of-democratic-lawyers-capetown-so/
[11] https://eldh.eu/2022/01/day-of-the-endangered-lawyer-2022-events-in-solidarity-with-endangered-lawyers-in-colombia/
[12] https://eldh.eu/en/2021/10/save-the-date-labour-rights-the-digital-transition-28-29-october-2021/
[13] https://eldh.eu/en/2021/05/agenda-of-the-1st-international-fair-trial-day-and-ebru-timtik-award-2/
[14] https://eldh.eu/en/2022/04/eldhs-deep-concern-at-catalangate-illegal-surveillance-of-catalans/
[15] https://eldh.eu/en/2022/04/western-sahara-crisis-a-solution-must-be-based-on-international-law/
[16] https://eldh.eu/en/2022/04/statement-against-the-banning-of-the-peoples-democratic-party-hdp/
[17] https://eldh.eu/en/2022/03/failure-of-the-united-kingdom-to-investigate-and-prosecute-murders/
[18] https://eldh.eu/2022/03/eldh-statement-on-the-russian-invasion-of-ukraine/
[19] https://eldh.eu/2010/05/peoples-in-motion/
[20] https://eldh.eu/wp-content/uploads/2018/09/Documentation_-_conference_Legal_Impact_of_Debt_Crisis_-_21st_May_2011_-_Athens.pdf
Includes chapter by Bill Bowring “France, Polynesia, Nuclear Testing, the World Court: Law and the Public Conscience”, and many other papers.
Russia’s war on Ukraine
Socialist Lawyer No. 89, May 2022
Bill Bowring, International Secretary, Haldane Society of Socialist Lawyers; Professor of Law, Birkbeck College, University of London
At the time of writing, it is Day 45 of Putin’s illegal invasion of Ukraine.
In what follows I am careful not to refer to “Russia”, especially since so many Russians are opposed to the war, but to the Kremlin, the Russian regime, and in this case to Putin. The Russian invasion of Ukraine since 24 February is Putin’s disastrous adventure.
The legal characterisation of the war is straightforward. Putin’s invasion of 24 February is a flagrant violation of the UN Charter, of the sovereignty of Ukraine and of the Charter’s Article 2(4) prohibition on the use of force “against the territorial integrity or political independence of another state, or in any other manner inconsistent with the Purposes of the United Nations.”
Russia cannot claim that it is acting in self-defence, or that it has the authorisation of the UN Security Council. Even the apparent claim of humanitarian intervention, to prevent genocide in the separatist regions of DNR and LNR, has seemingly been abandoned in its recent submission to the ICJ in the genocide case, Ukraine v Russia.
In his speech of 21 February 2022 to his Security Council, forcing them each to share responsibility for the invasion, Putin hardly mentioned NATO.
He said (in the official Kremlin translation) “ …modern Ukraine was entirely created by Russia or, to be more precise, by Bolshevik, Communist Russia. This process started practically right after the 1917 revolution, and Lenin and his associates did it in a way that was extremely harsh on Russia – by separating, severing what is historically Russian land. Nobody asked the millions of people living there what they thought… Lenin’s ideas of what amounted in essence to a confederative state arrangement and a slogan about the right of nations to self-determination, up to secession, were laid in the foundation of Soviet statehood. Initially they were confirmed in the Declaration on the Formation of the USSR in 1922, and later on, after Lenin’s death, were enshrined in the 1924 Soviet Constitution.”
So in Putin’s view Ukraine has no right to exist. He denounces Lenin’s “Right of Nations To Self-Determination”. On this issue Haldane stands with Lenin. See the Special Issue of Socialist Lawyer No.53, October 2009, “The Right to Self-Determination”. You can find this easily on the Haldane web-site.
Putin is also horrified by the fact that Soviet Ukraine, as a Union Republic of the USSR, became a founding member of the UN in 1945 (as did Belarus) and had its own seat in the General Assembly. In 1991 it became an independent sovereign state, with the collapse of the USSR. In 1996 in its first independent Constitution it created the Autonomous Republic of Crimea with its own Supreme Soviet and privileges for the Russian speaking inhabitants. From that date there was no movement to rejoin Russia. I first visited Donetsk and Crimea in 1992, and many times thereafter.
By the 1997 Partition Treaty between Russia and Ukraine, Ukraine agreed to lease Sevastopol to Russia for 20 years until 2017. The treaty also allowed Russia to maintain up to 25,000 troops, 24 artillery systems, 132 armoured vehicles, and 22 military planes on the Crimean Peninsula. Russia never disputed that Crimea was an integral part of Ukraine, until the Russian Annexation in 2014, when Russia abrogated the Treaty. Those forces carried out the illegal annexation on 2014. In international law Crimea remains part of Ukraine.
President Yanukovich intended to enter into the Association Agreement with the EU, was prevented by Russian pressure, and then fled the country during the Maidan revolution, having stolen enormous sums from Ukraine. So Russia invaded Ukraine from 2014, and starting arming the “separatists” in Donetsk and Luhansk. From 2014 until very recently, Russia insisted that Donetsk and Luhansk remained part of Ukraine, and wanted special status for them. For myself, I can’t see why they should not have the status which Crimea had before 2014, within Ukraine.
In 2014 Ukraine had no serious army. Now it has a professional army with experience fighting Russia proxies, armed by Russia, since 2014. It has every legal right to seek support, weapons etc, in its self-defence.
The so-called “anti-imperialist” left, in reality apologists for Putin, insist that the present war is all the fault of NATO. However, NATO became irrelevant in 1991, when the Warsaw Pact, its opposite number, was dissolved. In 1999 NATO acted illegally and violated its own Charter (which specified that it was a purely defensive organisation) when it bombed Serbia. Trump wanted to scrap it. Now, like a zombie, it has returned – thanks to Putin..
There is no prospect of NATO accepting Ukraine as a member in the near future, and President Zelensky says it does not want to join, although as a sovereign state Ukraine is entitled to invite the forces of any state of organisation. That is the basis on which the presence of Russian forces in Syria is lawful in international law.
Ukraine is a highly corrupt state, dominated by warring oligarchs – Poroshenko, Kolomoisky, Firtash. Zelensky, a former TV comedian, was said to be the cat’s paw of Kolomoisky. But it does have democratic elections and a free media. Having failed to keep his promise to deal with corruption, Zelensky was increasingly unpopular before 24 February. Putin saved him.
Russia is a kleptocracy, a regime of thieving under secret service rule. There are no free elections, and the last independent media have been closed. The Kremlin regime is increasingly repressive, and Russia suffers from a rapidly diminishing population, an HIV/AIDS epidemic, rabid Covid, and high inflation.
The working class of both countries is getting it in the neck from both regimes, Ukrainian and Russian, and will be the losers in both countries if the war since 2014 is intensified. We in Haldane and ELDH stand with the workers and with the free trade unions of both countries. ELDH has member associations in both Ukraine and Russia.
And Putin already has three major achievements.
First, he has brought NATO back to life. With Finland and Sweden considering membership, Russia will soon have an even longer border with NATO.
Second, despite his having secured Brexit, with the help of his friend and admirer Nigel Farage, and large sums of Russian money, he has succeeded in uniting the EU, even his friend Victor Orban in Hungary.
Third, as a result of Putin’s action, Germany has changed its firmly held policies of so many years.
Parliamentary Assembly of the Council of Europe: Committee on Legal Affairs and Human Rights; Meeting to be held in a hybrid manner, on 4 April 2022 from 9.30am – 12 noon and from 2.30pm – 5pm, CEST (Central European Summer Time)
Legal and human rights aspects of the aggression by the Russian Federation against Ukraine
Intervention by Professor Bill Bowring, Birkbeck College, University of London, Barrister
In what follows I am careful not to refer to “Russia”, especially since so many Russians are opposed to the war, but to the Kremlin, the Russian regime, and in this case to Putin, whose disastrous adventure the Russian invasion of Ukraine since 24 February is.
The legal characterisation of the war is straightforward. Putin’s invasion of 24 February is a flagrant violation of the UN Charter, of the sovereignty of Ukraine and of the Article 2(4) prohibition on the use of force “against the territorial integrity or political independence of another state, or in any other manner inconsistent with the Purposes of the United Nations.”
Putin has made it clear that in his view Ukraine is an artificial nation, created by V. I. Lenin, which has no right to exist. Putin is also enraged by the fact that the Ukrainian SSR had the status of a Union Republic, with the right to secede, in the USSR, and was a founder member of the UN in 1945 with its own seat (with Belarus) on the UN General Assembly. It became an independent sovereign state automatically in December 1991.
Russia cannot claim that it is acting in self-defence, or that it has the authorisation of the UN Security Council. Even the apparent claim of humanitarian intervention, to prevent genocide in the separatist regions of DNR and LNR, has seemingly been abandoned in its recent submission to the ICJ in the Ukraine v Russia, genocide case.
Less than a month after Putin’s invasion of Ukraine, Russia ceased to be a member of the Council of Europe. On 16 March 2022 the Committee of Ministers decided to expel Russia from the Council of Europe with immediate effect, but without spelling out the consequences.
Was it a surprise? Russia had come close to expulsion in 2000 soon after it joined the Council, following Lord Frank Judd’s excoriating reports as rapporteur on Russia’s gross human rights violations in Putin’s Second Chechen War. But Tony Blair invited Putin on a private visit to London in April 201, including tea with the Queen. Putin publicly thanked Blair a year later for having saved Russia from expulsion.
Again, the Council of Europe imposed sanctions on Russia following its illegal annexation in 2014 of Crimea and support for separatists in Donbas. But the sanctions were removed, Russia was restored to its rights in PACE, and it paid its arrears of subscription, in a singularly opaque deal done in 2019.
Russia has ratified many treaties of the Council. It is a party to the following regional human rights treaties: the European Convention on Human Rights and several of its protocols; the Revised European Social Charter; the European Convention for the Prevention of Torture; and the Framework Convention for the Protection of National Minorities. Russia ceased to bound by any of these treaties as from 16 March.
As concerns the applicability of the ECHR, on 23 March 2022 the Committee of Ministers and the Plenary of the Strasbourg Court decided, separately but almost simultaneously, that Russia will cease to be a Contracting Party to the ECHR on 16 September 2022. This means that Russia will be responsible for violations of the ECHR that occur during this six month period. Thus the Strasbourg Court will have jurisdiction over all applications alleging violations of the ECHR that occur before and during this period that are filed until 16 September 2022, and possibly later, if the Court accepts cases alleging violations before that date but where domestic remedies are exhausted thereafter.
The newly elected Russian judge, my friend Mikhail Lobov, will continue hearing cases until 16 September 2022, when he will no longer be a permanent member of the Court. He will continue to sit until then in all cases concerning Russia,
Russia’s expulsion is a disaster for the whole population of Russia, who lose the rights exercised by so many in the 24 years since Russia ratified the ECHR. As of 28 February 2022 18,000 applications against Russia were pending. Their cases will be dealt with.
From my experience representing the applicants in the first six Chechen cases decided in 2005 five years after their claims were lodged, and most recently the judgment of 24 September 2021 in favour of my client, in Carter v Russia, that her husband Alexander Litvinenko was murdered by the Russian state, I am certain that my clients did not seek financial compensation, nor were they deterred by the long wait.
What they wanted was the truth of what had happened to them and where responsibility lay, from the highest court in Europe.
In an article of 28 March 2022, the serious Russian daily newspaper Kommersant, reporting on the decisions of 23 March 2022, asked whether, with the 18,000 backlog, the Court would prioritise judgements in the most politically resonant cases, for example the many complaints of Alexander Navalny, or the NGO Foreign Agent cases. The paper recalled that the first 11 such NGO complaints were lodged in 2012. In March 2017 when the Court communicated them, there were already 48 NGO applicants.
So far there were no indications that Russia would not execute judgments against it, albeit without enthusiasm. It should be recalled that Russia has paid almost all the compensation ordered in the many cases decided in 24 years. There have been many cases where reforms to law and procedure have been implemented following judgments. The case-law of the Constitutional Court of the Russian Federation is full of cases citing the ECHR and its case-law.
Since the judgment and law of 2014 and 2015 permitting the Constitutional Court to rule that it is constitutionally impossible to comply with a judgment of the Court, there have been only two such cases, Anchugov and Gladkov v Russia, following the UK’s bad example in Hirst v UK, which was settled to the satisfaction of the Committee of Ministers; and the Former Yukos Shareholders v Russia, where I have some sympathy with Russia, which has paid costs and expenses, but not the enormous sum of compensation..
How will the war end? No-one knows, but it has already been a disaster for Russia. Ukraine had no army in 2014. Now it has a professional army with more than seven years of experience fighting Russia and its proxies. Ukraine has become much more united and patriotic. Putin did not expect such resistance to his invasion.
Nevertheless, Putin already has three major achievements.
First, he has brought NATO back to life. With Finland and Sweden considering membership, Russia will soon have an even longer border with NATO.
Second, despite his having secured Brexit, with the help of his friend and admirer Nigel Farage, he has succeeded in uniting the EU, even his friend Victor Orban in Hungary.
Third, as a result of Putin’s action, Germany has changed its firmly held policies of so many years.
Theses on the present Russia-Ukraine crisis
1) NATO became irrelevant in 1991, when the Warsaw Pact, its opposite number, was dissolved. In 1999 NATO acted illegally and violated its own Charter (which specified that it was a purely defensive organisation) when it bombed Serbia. Now, like a zombie, it has returned.
2) Ukraine became a founding member of the UN in 1945 (as did Belarus) and had its own seat in the General Assembly as a Union Republic of the USSR. In 1991 it became an independent sovereign state, with the collapse of the USSR. In 1996 in its Constitution it created the Autonomous Republic of Crimea with its own Supreme Soviet and privileges for the Russian speaking inhabitants. From that date there was no movement to rejoin Russia.
3) By the 1997 Partition Treaty between Russia and Ukraine, Ukraine agreed to lease Sevastopol to Russia for 20 years until 2017. The treaty also allowed Russia to maintain up to 25,000 troops, 24 artillery systems, 132 armoured vehicles, and 22 military planes on the Crimean Peninsula. Russia never disputed that Crimea was an integral part of Ukraine, until the Russian Annexation in 2014, when Russia abrogated the Treaty. Those forces carried out the annexation. Yanukovich intended to enter into the Association Agreement with the EU, was prevented by Russian pressure, and then fled the country, having stolen enormous sums from Ukraine.
4) The annexation was illegal and in international law Crimea remains part of Ukraine. Since 2014 Russia has insisted that Donetsk and Luhansk remain part of Ukraine, and wants special status for them. For myself, I can’t see why they should not have the status which Crimea had before 2014.
5) There is no prospect of NATO accepting Ukraine as a member in the near future, although as a sovereign state Ukraine is entitled to invite the forces of any state of organisation. That is the basis on which the presence of Russian forces in Syria is lawful in international law.
6) None of this explains why Russia has moved more than 150,000 soldiers and equipment, ships, etc, up to the Ukrainian border.
7) Ukraine is a highly corrupt state, dominated by warring oligarchs – Poroshenko, Kolomoisky, Firtash. Zelensky, a former TV comedian, is the cat’s paw of Kolomoisky. But it does have democratic elections and a free media. Russia is a kleptocracy, a regime of thieving under secret service rule. There are no free elections, and very limited free media. The Kremlin regime is increasingly repressive, and Russia suffers from a rapidly diminishing population, rabid Covid, and high inflation. It cannot possibly afford to keep such enormous mobilisation on the border of Ukraine. Neither corrupt regime can continue the present situation.
8) The working class of both countries is getting it in the neck from both regimes, Ukrainian and Russian, and will be the losers in both countries if the war since 2014 is intensified. We in IADL and ELDH should stand with the workers and with the free trade unions of both countries.
Today, February 15th, marks the centenary of the inaugural session of the Permanent Court of International Justice at The Hague. Bill Bowring explores how international justice has operated since then.
What do we have to celebrate in 100 years of international justice? How should we evaluate Labour’s key role in its founding and continuation?
The Permanent Court of International Justice (PCIJ) was the Court of the League of Nations. The League originated in proposals before WWI, in the 1907 Hague Conference, but became a reality when the League was founded on January 10th 1920 at the Paris Peace Conference which ended the war. The League had 44 states at its start, 31 of which had been allies of Britain, France and the USA. It was the first worldwide intergovernmental organisation. At its peak in 1934-5 it had 58 members, but the USA never joined, and the USSR joined in 1934 only to be expelled after invading Finland.
Of course, most of the planet, with the exception of South America which had already broken free from Spain and Portugal, was ruled by Britain, France and the other European colonial powers. The battle for decolonisation raged through the decades after WWII, and has not yet been completed. All round the world there are peoples with a right to self-determination – the right which had its origins with Marx, Engels and Lenin – which they are still denied.
In 1920 the Council of the League of Nations organised the drafting of the Statute of the PCIJ, which was able to move into the grand Peace Palace in The Hague, constructed in 1913 before WWI. The first session of the PCIJ took place from January 30th to March 24th 1922, with a formal opening on February 15th.
Despite its abject failure to prevent war, the League persisted until 1946, when it had already been replaced by the United Nations, founded on October 24th 1945. The PCIJ continued as the UN’s International Court of Justice (ICJ), which still resides in the Peace Palace, and also inherited the Statute with its dated language (“civilised nations”, etc.).
What was Labour’s attitude? Through the efforts of Arthur Henderson and Ramsay MacDonald, the Keir Starmers of their day, the Labour Party endorsed the idea of a League of Nations at a special conference in December 1917. The Party’s 1918 programme Labour and the New Social Order demanded that a “Universal League or Society of Nations” be established. At another Special Conference in April 1919 they accepted the provisions under which nations in dispute would be obliged to refer their difference to the League’s court.
In its 1928 programme Labour and the Nation, Labour pledged to use the PCIJ, and as Foreign Secretary in MacDonald’s second minority Labour Government of 1929-31, Henderson signed an Optional Clause extending the jurisdiction of the PCIJ to all legal disputes involving Great Britain.
Labour’s programme in no way challenged the existence of the British Empire, or the barbarism and bloodshed through which it was defended.
The dominant view of the progressive radicalism of the postwar Attlee government of 1945-1951, must be revisited against the brutality of its imperial adventures. At the end of WWII, the Labour government found itself involved in three military interventions, in Indochina, Indonesia and Greece, all initiated while Labour had been in coalition with the Conservatives, but now enthusiastically continued. The welfare state was accompanied by the creation of the warfare state. It was the Labour Party which cemented the ‘special relationship’ with the United States, and Attlee and Labour played a central role in 1949 in establishing NATO. In the 2019 election, Labour confirmed its support for NATO and for the UK’s financial contribution.
Nevertheless, the ICJ has flourished, with some progressive decisions. In 1986, Nicaragua won its case against the USA, over its support for the Contras and other actions. In 1995 the ICJ ruled on the possession and use of nuclear weapons, in an Advisory Opinion which continues to cause problems for nuclear missile submarine commanders. In 2004 it ruled on the illegality of Israel’s Wall in the Occupied Palestinian Territory. And in 2019 it lambasted the UK for its violation of the right to self-determination of Mauritius, when, by duress, it kept the Chagos Islands, and handed Diego Garcia to the USA for its notorious base.
The Human Rights Committee of the UN hears complaints against UN states for individual violations, and there are now three regional courts – the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court of Human and Peoples’ Rights – under which individuals and groups can complain against governments. Britain has never accepted the European Convention on Human Rights, despite its being the brain-child of Winston Churchill. Theresa May saw it as a terrorists’ charter. The UK ratified it in 1953 but only allowed complaints to be brought under it in 1966, and immediately suffered several defeats over colonial issues, and only brought it partially into UK law in the Human Rights Act 1988.
The Labour left, initially sceptical about the ECHR because it would give too much power to judges, now defends it against the Tory onslaught.
International Criminal Justice made a shaky start with the creation by the UN Security Council of the International Criminal Tribunals for Yugoslavia and Rwanda, prosecuting individuals for the crime of Genocide, Crimes Against Humanity and War Crimes. The International Criminal Court was created in 1998 after a huge campaign by NGOs, and 123 states have ratified its Rome Statute. It is weakened by the fact that the USA, India, Russia and China have not signed up. But after a start dogged by double standards, and an exclusive focus on Africa, the outgoing Prosecutor, Fatou Bensouda, has broadened its remit, now to include was crimes committed in Palestine.
So it would be far too early to write off the whole of international justice. And for a socialist lawyer like myself it provides opportunities for useful legal work, in my case representing Kurdish and Chechen victims.
Bill Bowring, Colchester CLP, teaches international law and human rights at Birkbeck College. He is International Secretary of the Haldane Society of Socialist Lawyers and President of the European Lawyers for Democracy and Human Rights (in 21 European countries).
Buy my book in Russian electronically with 10% discount.
Bill Bowring: Is Russia a European country?
6 September 2021
by Bill Bowring, Professor of Law at Birkbeck College, University of London, where he teaches public international law, human rights and minority rights. https://www.rightsinrussia.org/bowring-2/
It is too often asserted that Russia is not a “European” country: not necessarily by the Brexiteers who are certain that Britain is not European either, but “global”.
True, from 1237 to 1480, with the battle known as the Great Stand on the Ugra River, what is now Russia paid tribute to the Mongol-Tatar Horde. For a graphic depiction of what this meant, see Tarkovsky’s great film Andrei Rublev. The tribute was paid with regular visits to the Tatar capital in the steppe (better for horses), and Russian rulers intermarried with the Tatar elite. To this day the Russian language has many Turkic – the Tatar language, the historic tongue of 5 million Tatars in Russia, is Turkic – words, for important things, especially in the 13th to 15th centuries, like horse (loshad), kazak, guard (karaul), treasury (kazna), money (denga), brick (kirpich), watermelon (arbuz), shoe (bashmak), etc
For the rise of Moscow, Eisenstein’s Ivan the Terrible cannot be bettered. Only 50 years after the defeat of the Tatars, Ivan IV became ruler of Moscow in 1533, of Russia in 1547 and in 1552 conquered Kazan, now the capital of Tatarstan, razed the Qul Sharif Mosque (now splendidly rebuilt) to the ground, and constructed St Basil’s cathedral in Red Square to celebrate.
However, Ivan did not only look eastwards. In 1570 he was furious (the letter is on the internet) when Queen Elizabeth I rebuffed his offer of a strategic marriage: England was building a maritime empire, Moscow a continental empire. Serious trade between England and Russia had begun with the Muscovy Company in 1551.
Indeed, Britain and Russia have been on the same side of every serious war – Napoleon, WWI, WWII – since then. Alexander I marched all the way to Paris in 1814, defeating Napoleon on the way, with generals named Barclay de Tolly (Scots/German) and Wittgenstein. The exception is the Crimean War (1853-1856), and no student, English or Russian, can tell me what this war was about. Britain and Russia did not even come to blows in Central Asia, and both failed to conquer Afghanistan. Britain lost a whole army at Kabul in 1842.
The greatest Tsar of Russia was Catherine II, a German princess, there are even more German family names than Scots and Welsh. Many Russians have the family names Gordon, Hughes, Williams – Scots and Welsh who built the railways, married Russians and stayed.
I’m a lawyer. The founder of law as an academic discipline in Russia, Semeon Desnitsky, spent six years in Glasgow, studying constitutional law under Adam Smith, and becoming Catherine’s chief legal adviser. In the mid 19th century Russian civil law was based on German law, and restored in the NEP period after 1917; Alexander II initiated jury trial on the English model, an independent bar, and “justices of the peace” in 1864, all restored since 1991; the present Civil Code was drafted with Dutch experts, the Constitutional Court of the Russian Federation is based on the German Verfassungsgericht in Karlsruhe. Russia is a member of the Council of Europe since 1996 and party to the ECHR since 1998.
Russia is not European? Then neither is Britain, the latter suggestion being more convincing.
Bill Bowring, Professor of Law, University of London, Barrister of England and Wales, President of the European Lawyers for Democracy and Human Rights.
We are here to commemorate the tragic death in prison of Ebru Timtik, on hunger strike in protest against the absence of a fair trial for her in Turkey. She was a brave fighting lawyer.
Here is my answer to the question for this session.
I am a revolutionary socialist who happens to have become qualified as a lawyer. I seek to use my skills as far as possible in the class struggle, especially struggles for self-determination. I have written a lot about this.
So my own history might be of interest, to show what I mean.
I did not qualify at first as a lawyer. When I was 16-17, already a communist, I worked on a small cargo ship around West Africa and the East Coast of the USA. This opened my eyes to the reality of European colonialism in Africa, and I participated in New York in the March of a Million against the Vietnam War.
The following year, 1968, I was a protestor against the Vietnam War, at the Democratic Convention in Chicago, as a member of the Students for a Democratic Society (SDS).
My degree from 1967 to 1970, at Kent University, was in Philosophy. I was a revolutionary socialist, first in the Revolutionary Socialist Students Federation, and for a period in 1972, the high point of the class struggle in England, I was a full time revolutionary in the Workers Revolutionary Party, organising coal miners.
In England it is possible to qualify as a lawyer in just two years, which I did from 1973-1974.
I lived for 15 years in Brixton, South London, from 1974, and served as a volunteer adviser in the Brixton Advice Centre. I was “called to the Bar” in 1974, and in my first cases as a barrister I represented housing squatters, and campaigned against the proposed law criminalising squatting.
In 1978 I was elected as a Labour Councillor in Lambeth which includes Brixton. There were several black councillors, and a black Mayor.
I was involved in the Brixton Riots in 1981, when Brixton was under a state of siege from the police, and in 1985 when the police shot a black woman in bed.
In 1986 I and my Council colleagues were prosecuted by Mrs Thatcher for “wilful misconduct”, for taking illegal action against her policies, fined £160,000, and banned from holding public office for 5 years. We raised the money through the Labour Party and trade unions.
Since that time I have been active in the Haldane Society of Socialist Lawyers.
From 1986 to 1990 I represented victims of police misconduct: wrongful arrest, false imprisonment, torture, malicious prosecution. These cases were mostly cases of racist attacks on black people and the working class.
In 1988 I was sent on a mission to Palestine, and first saw the relevance of human rights law and the law of armed conflict. I have returned to Palestine many times.
Since 1991 I have been closely involved in the struggle against the British occupation of Northern Ireland, in the armed conflict which lasted from 1969 to the 1998 Good Friday Agreement. Marx and Engels strongly supported the fight for Irish independence. I fight for the reunification of the Island of Ireland.
I began teaching, at the University of East London, in a working class district, in 1990. Starting in 1992, I worked as a volunteer with the Kurdish Human Rights Centre, and represented Kurdish applicants at the European Court of Human Rights: Özgur Gundem v Turkey, Aktas v Turkey, ipek v Turkey and many others. Since 2000 I have been representing Chechen and other victims of Russian violations of the ECHR.
I agree with Marx and Engels that there can be no socialist law, nor can there be socialist legal theory. The law is made by the capitalist state, and is an instrument of the ruling class in the class struggle.
Workers can and must, however, advance legal demands. In their time this was the fight for a ten hour day, to be enforced by law. To do this they need the services of competent lawyers
In my opinion lawyers cannot be a revolutionary vanguard, but there can be revolutionaries who are lawyers, just as there can be revolutionaries who are accountants, or doctors. Or even capitalists, like Engels. But I am not sure what a “revolutionary lawyer” would be. Probably a bad lawyer.
The workers or any people involved in struggle against capitalism, or suffering persecution or injustice, may need a competent lawyer. That is what we try to offer in the Haldane Society. We played a particularly important role in the Great Miners Strike of 1984-5. Now we are involved in many struggles – there is resistance all over Britain.
But I don’t think law can be transformative or emancipatory. That is the role of the working class in the class struggle. Lawyers are competent technicians, serving the working class.
The reception or the lack of it, of the concepts of Rudolf von Jhering in the English speaking world
Outline of Bill Bowring’s presentation
Ivanovo State University, Russia, 25 September 2020
- There are only two translations of Jhering’s work in English. Jhering’s masterpiece, Geist des römischen Rechts (The Spirit of Roman Law) 1852–1865, in two volumes has never been translated. The two translations are Der Kampf ums Recht (1872) and Der Zweck im Recht (1877–1883).
- Both were published in the USA, the first as The Struggle for Law, translated from the 5th edition by the attorney John J. Lawlor, and published in Chicago in 1879. There is a facsimile edition published in 2017. The second was published as Law as a Means to an End, translated by Isaac Husik, and published in New York in 1913, with a reprint in 1968. This is hard to find.
- Nevertheless, I have found at least 20 scholarly articles in English in which Jhering is mentioned, and in some of which his work is discussed in detail.
- What is the nature of Jhering’s contemporary reception? And why have the two English translations appeared only in the United States?
- The reason is to be found in an article published in 2012 in the Tulsa Law Review, by three scholars at the University of Connecticut and Fordham Schools of Law, Julie Grisé, Martin Gelter, and Robert Whitman. Their article is entitled “Rudolf von Jhering’s influence on Karl Llewellyn”, that is, Jhering’s influence on the American Realist Legal School. Karl Llewellyn (1893 to 1962) was fluent in German, and indeed fought on the German side in WWI, winning an Iron Cross. He is best known for The Bramble Bush: On Our Law and Its Study, 1930, republished in 2009 by OUP.
- This school no longer dominates US jurisprudence, but the authors cite President Obama, a lawyer, in 2009 in relation to an appointment to the Supreme Court: “Iwill seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book, it is also about how our laws affect the daily realities of people’s lives, whether they can make a living, and care for their families, whether they feel safe in their homes, and welcome in their own nation.” Realism!
- What was this influence?
- First, according to the authors of the article, was Jhering’s crusade against conceptual jurisprudence – his campaign against the use of “heavenly concepts” to solve real problems, and juristic work driven by purpose, not invisible concepts. For Jhering, the life of the law was experience, not logic: law had to be functional.
- Second, Llewellyn leaned about purposive interpretation from Jhering. The language of a statute was relative, not absolute, must be understood in terms of its context: law was a means to preselected social ends.
- Third, Llewellyn’s views on the judicial function – that law is merely a prediction of what the courts will really do.
- The American Realist School has in turn had a profound influence on Critical Legal Studies, which remains a major school of jurisprudence in the US and UK.
- One aspect of this is the “indeterminacy thesis”, which emerged as a left-wing reply to Ronald Dworkin’s contention that there is a “right answer” to each legal problem. In its strongest form it is an extreme version of legal realism. It argues that nothing is law until it has been promulgated by an official – either a judge or the legislature.
- Duncan Kennedy of Harvard Law School is a leading Critical Legal scholar. In an article published in 2000 in the Colombia Law Review, on Lon Fuller, placing Fuller’s analysis of contract questions in the context of the critique of the 19th century will theory of contracts, and the rise of sociological jurisprudence and legal realism.
- In a footnote Kennedy says: “Between 1972 and 1975, I read Rudolf von Jhering’s The Spirit of Roman Law (in French translation) because Fuller had cited it. Jhering’s seemed to me a much better, indeed an unutterably brilliant, take on the issues Fuller discussed, and this greatly reduced my admiration for Fuller. My article downgrades him for this reason.”
- Interest in Jhering is not only to be found in the US. In 2009 Neil Duxbury, now Professor of English Law at the London school of Economics, published an article in the prestigious Oxford Journal of Legal Studies entitled Jhering’s Philosophy of Authority. His starting point was that during the 20th century Anglo-American legal philosophers saw Jhering either as the German forerunner of American legal realism, or as an early proponent of a jurisprudence of interests. In Duxbury’s view Jhering’s goal was rather to explain how legal systems originate, and how they maintain authority. His originality was in the concept of Rechtsgefühl, that authority depends on citizens’ feelings of what is right and just. He believed that the authority of a legal system depends on its ability to negotiate and accommodate struggles based on feelings of right. Struggles between citizens, between citizens and the State, and between States.
- My curiosity was aroused by the following.
- In the Kampf, Jhering is full of praise for the “combative Englishman” – “the typical figure of the travelling Englishman who resists being duped by inn-keepers and hackmen, with a manfulness which would induce one to think he was defending the law of Old England.. For, in the few shillings which the man here defends, Old England lives.” (p. 62) and later “in the shilling he stubbornly defends the political development of England lives.” (p.94) All of this is to illuminate the “healthy feeling of legal right”.
- In the Zweck, I noted Jhering’s powerful critique of the liberalism of John Stuart Mill (p 403 to 409), having denounced socialism and communism as “vain folly” (p.396) and referred to “so-called class struggle” p 410. To me the Zweck seems curiously detached even from the world of the second half of the 19th century, and most references are to Roman law.
the real movement which abolishes the present state of things 