It may not work as a solace but Indians, accustomed to seeing lawyers like Prashant Bhushan, Abhishek Manu Singhvi, Kapil Sibal, Indira Jaising et al rushing to the court to rescue anarchists and terrorists from the clutches of the law of sedition, must note that it is a global phenomenon. It happens in the US, European Union member states, Canada and even in the International Court of Justice (ICJ) and the International Criminal Court (ICC). Yesterday, lawyers for a Malian Islamist rebel accused of being central to the persecution of residents in Timbuktu and the destruction of the city’s holy sites told judges at his war crimes trial he was wrongly targeted.
“He should not be convicted because he happened to be in the wrong place at the wrong time, with the wrong ethnicity,” defence lawyer Melinda Taylor said of her client Al Hassan Ag Abdoul Aziz.
According to prosecutors, Al Hassan was a key member of the Ansar Dine Islamist group which controlled every aspect of daily life after their takeover of Timbuktu in 2012. Al Hassan headed an Islamic police force that terrorised the population of Timbuktu, the prosecutors say.
He is charged with war crimes including torture and sexual slavery.
As well as trying to impose sharia Islamic law across a divided Mali, the al Qaeda-linked fighters used pick-axes, shovels and hammers to shatter earthen tombs and centuries-old shrines reflecting the local Sufi version of Islam in what is known as the “City of 333 Saints”.
Defence lawyers in their opening statement did not deny Al Hassan was a member of Ansar Dine. However, they painted him as a man simply trying to maintain order in a chaotic situation in Timbuktu after it was taken by the rebels.
In addition, defence lawyers said Al Hassan had mental problems after being allegedly tortured while in detention in Mali before being sent to the ICC.
The ICC, the world’s only permanent war crimes tribunal, has been examining events in Mali since 2012. French and Malian troops pushed the rebels back the following year.
Lawyers for terrorism: Resistance and support
In March 2010, Liz Cheney and her “Keep America Safe” group released an ad demanding that the Attorney General release the names of seven Justice Department attorneys who were said to have represented defendants in terrorism cases, suggesting that those lawyers do not share American values and should not be working for the Department of Justice.
During oral argument in the case of Holder versus Humanitarian Law Project, Solicitor General Elena Kagan argued that material support laws could properly be used to prosecute lawyers who filed briefs on behalf of groups designated foreign terrorist organisations: “to the extent that a lawyer drafts a brief for the PKK [Kurdish Workers’ Party, of Turkey] or the LTTE [Liberation Tigers of Tamil Eelam, of Sri Lanka] . . . that would be prohibited.”
But public resistance to such lawyers has been observed too. In India, Poulomi Banerjee wrote for Hindustan Times on 13 March 2016: “… In Chhattisgarh, a group of human rights lawyers were forced out of their practice in Jagdalpur for representing and defending those branded as Maoists. On the other hand, at the Patiala House Court in Delhi, a group of lawyers resorted to violence as student leader Kanhaiya Kumar, booked under sedition charges, was brought for trial. The lawyers beat up Kumar as well as media personnel present in court.”
While it is imperative that an accused is represented well in a court of law for the sake of a fair trial, it has been observed that a certain set of lawyers always stand on the side of terror and against the people and the state. It is pertinent to ask whether that side alone comes across to this set of lawyers as being wronged.
The Economic Times reported on 25 November 2018 that the lawyers who defended Pakistani terrorist Ajmal Kasab, the only survivor out of the 10 Lashkar-e-Toiba militants who was arrested and hanged after a prolonged trial, never got their fees. Does this mean these lawyers do it pro bono, as their hearts bleed for those who bleed others? Is it ideological conviction? Or is there a global or foreign power that helps them not only sustain but also a lifestyle only the rich in a poor country can afford?
Lawyers like Prashant Bhushan in India go to the extent of addressing seminars in support of terrorists. About similar lawyers in the US, Susan N Herman writes, “… there is a line between representation and participation and that defence attorneys may be subject to prosecution for crossing it. The OLC lawyers, unlike defence attorneys who are careful to observe traditional ethical guidelines while representing alleged terrorists, crossed an even more important line. In the words of the OPR report, they were not “represent[ing] a party in a contested matter,” but advising government actors in a context where there was no neutral arbiter to judge whether their advice was “thorough, candid and objective.” OLC lawyers are expected to play something like the role of arbiter when their advice will unleash conduct rather than merely arguments in court. For their failure to do so in this critically important instance, Yoo and Bybee should be held accountable.” Herman is the centennial professor of law at Brooklyn Law School and president of the American Civil Liberties Union.
With inputs from Reuters