Den ledende menneskerettsadvokaten Ben Emmerson argumenterer i FN for at mer oppmerksomhet må vies menneskerettighetene til ofrene for terrorisme.

Etter flere kontroversielle avgjørelser fra Den europeiske menneskerettsdomstolen (EMD) har ordet «menneskerettigheter» fått negative konnotasjoner i den britiske offentligheten, som oppfatter landets omstridte menneskerettslovgiving som et rettighetscharter for kriminelle og utenlandske terrorister på bekostning av lovlydige borgeres sikkerhet. Den utbredte misnøyen har fått flere parlamentsmedlemmer til å ta til orde for å erstatte Den europeiske menneskerettighetserklæringen i britisk lov med en egen, nasjonal rettighetserklæring og/eller å trekke landet fra EMDs jurisdiksjon.

Til tross for at Emmerson, som er blant Storbritannias kandidater til EMD, er motstander av å melde seg ut, erkjenner han at de negative konnotasjonene tilknyttet menneskerettighetene representerer en stor utfordring:

Human rights’ laws – and the European Court in Strasbourg that upholds them – don’t always to go down very well with the British public, especially when they give prisoners the vote, or delay the deportation of radical cleric Abu Qatada to face terrorism charges.

The main charge is that human rights legislation protects the undeserving at the expense of the law-abiding. So much so that some MPs and campaigners are now advocating complete withdrawal from the European Convention on Human Rights – the basis for the court – and the introduction of our own domestic Bill of Rights.

“It is just inconceivable that that should ever happen,” says Ben Emmerson QC, a rising star among Britain’s human rights lawyers, and currently the leading candidate on a shortlist of three to fill the UK’s seat at the Strasbourg court on the retirement later this year of the current incumbent, Sir Nicolas Bratza. “If we withdrew,” he adds, “we would make ourselves a world pariah.”

For all his outrage, though, 48-year-old Emmerson acknowledges that the negative connotations that have attached themselves to the words “human rights’ – often seen as on a par with “health and safety” as the target of public discontent – do represent a major challenge. “There has been,” he concedes, “a huge mis-selling about what human rights and the European Court in particular actually stand for.”

Som FNs Spesialrapportør for antiterrorisme og menneskerettigheter vil Emmerson legge frem et forslag om en egen FN-konvensjon om menneskerettighetene til ofre for terrorisme. Emmerson håper at dette vil resultere i endringer som vil rette opp det nåværende inntrykket av at menneskerettighetslovgiving utelukkende handler om å beskytte terrorister og ikke gjelder for dem de angriper, myrder og lemlester.

– Det er ikke blitt rettet nok oppmerksomhet mot ofrenes rettigheter. I de senere årene er det blitt inngått 19 avtaler om samarbeid mot terrorisme, men ikke en eneste om ofrenes menneskerettigheter. Jeg tror vi er kommet til et punkt i historien hvor dette ikke kan bæres lenger. Fremfor alt setter det menneskerettighetene…jeg ønsker ikke å bruke stygge ord, så la oss si: i et skjevt perspektiv sett fra offentlighetens synsvinkel. Den ser det slik at menneskerettighetslovgivningen beskytter den ene parten, men ikke det uskyldige offeret. Det er vårt problem i øyeblikket, sier Emmerson til Daily Telegraph.

Described as one of the top ten QCs in the country by legal profession directories, and rumoured to have been the model, practical if not physical, for the Colin Firth radical barrister character in Bridget Jones’ Diary, Emmerson was raised a Catholic and educated by Benedictine monks at Douai School in Berkshire (an experience which, he says, has put him off the Church but not God).

In 2000, he was one of the founders of Matrix Chambers, the barristers’ set that includes Cherie Blair amongst its members, and is in the vanguard of human rights’ work. Among those Emmerson has represented are the WikiLeaks founder, Julian Assange in his fight against extradition, Katharine Gun, the GCHQ worker accused of breaching the Official Secrets Act by leaking documents in the run up to the Iraq war, and some of those detained without charge on grounds of national security.

His draft UN convention – revealed exclusively to this paper – makes a series of challenging proposals, principal among them that countries must offer compensation for human rights’ violations to victims of terror that take place on their territory. It is, in effect, what happens in the UK already under the Criminal Injury Compensation Board scheme, but isn’t the norm elsewhere, including the United States. There discretionary payments can be offered as “an act of beneficence”, but there is no binding legal right.

“Until we take head on,” explains Emmerson, “that victims of terrorism are victims of gross human rights violations, perhaps the grossest in the modern world, we are not doing what we say so often that we do, which is to put victims centre stage.”

But surely the ones doing the compensating should be those who carry out the terrorist crimes, not governments? “In Spain, after the Madrid bombings, the liability in the first instance was those against accused of terrorism, but because they had no way of fulfilling that liability, the Spanish government stepped in. The important point is that the rights of victims under human rights law cannot just be ignored or passed around. Victims of terrorism are in a very special category. These are not private murders carried out for private reasons. The victims are effectively the unwilling martyrs in a conflict between a terrorist organisation and the state that is not their own.”

Et annet av forslagene til FN dreier seg om forsikringsselskaper. Emmerson mener at alle medlemsland bør forby livsforsikringer som inkluderer klausuler som ekskluderer utbetaling ved dødsfall eller skader som resultat av terroraksjoner. – For mange familier hvis kjære har blitt drept eller alvorlig skadet har fremmet forsikringskrav bare for å bli fortalt at der finnes en ekskluderingsklausul i små bokstaver. Dette føyer spott til skade, sier han.

Emmerson’s commitment to the cause of victims is unmistakable. It is his belief that in human rights’ law, and in the interpretations made of it of the controversial Strasbourg court, there exists something that has positive benefits for all members of society. Should his proposals be taken as a fight back against the bad press – my words, not his – that his specialist area of law has suffered of late? “No,” he replies emphatically. “It is by no means a response to recent controversies, I’ve been working on this for best part of a year. But it is relevant to that debate.”

Why do judges and politicians seem to clash so often in this area? The Prime Minister recently told the Commons that the Strasbourg court’s ruling on the need to allow some British prisoners the vote made him “physically sick” “Historically governments will sometimes take decisions they expect to be overturned by the judiciary because they don’t want to take responsibility for them and are happy for the judges to be blamed,” Emmerson replies. He sits as a part-time judge in the high court. “But Michael Howard when he was Home Secretary was the first to disregard the mutuality of respect that exists between the judiciary and government by attacking decisions he didn’t like. That has now become an accepted form of public dialogue. The higher up the judicial hierarchy you get, the more tempered the Home Office criticism will be. When you get to Strasbourg, though, they are just foreigners.”

In whose ranks Emmerson may be sitting from November as the UK representative. Politicians, I suggest, can’t be so bad if they have put his name on the shortlist? He laughs. “I was surprised I didn’t get knocked off, but then I have worked for the government in Strasbourg as well as against them.” He pauses, and then smiles. “ But not very often”.

The Telegraph: Top QC says human rights laws need «serious change»