National Critical Lawyers' Group

The son of the executed activist faces the oil giant in a human rights trial this week. He seeks understanding rather than retribution
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Ken Saro-Wiwa Jnr
The Observer, Sunday 24 May 2009
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This week, a US court will hear a case that I and nine other plaintiffs filed against Royal Dutch Shell for its part in human rights violations committed against some Ogoni families and individuals in Nigeria in 1995. For some, the case is already being cast as a bookmark in the struggle for corporate accountability, but to me and the other nine plaintiffs it is all that and more.
Fourteen years ago, Ken Saro-Wiwa predicted that Shell would one day have to account for its actions in Nigeria. “I repeat,” he wrote in what would have been his final statement to the military tribunal that was to order his execution, “that I and my colleagues are not the only ones on trial. Shell is here on trial… the company has, indeed, ducked this particular trial, but its day will surely come … there is no doubt in my mind that the ecological war that the company has waged in the delta will be called to question sooner than later and the crimes of that war be duly punished. The crime of the company’s dirty wars against the Ogoni people will also be punished.”
My father was prevented from making his final statement to the court and he and eight of his colleagues were tried and executed for their alleged role in the harrowing murders of four Ogoni chiefs including his brother-in-law. The murders divided my family and set Ogoni against Ogoni, providing a convenient excuse for the military regime to arrest my father, detain and torture scores of innocent men and send in a military taskforce whose leader publicly vowed to “sanitise” Ogoni so that Shell could drill oil in my community.
Ken Saro-Wiwa’s real “crime” was his audacity to sensitise local and global public opinion to the ecological and human rights abuses perpetrated by Shell and a ruthless military dictatorship against the Ogoni people. The success of his campaign had mobilised our community to say “No to Shell” and to demand compensation for years of oil spills that had polluted our farms, streams and water sources. My father called the world’s attention to the gas flares that had been pumping toxic fumes into the Earth’s atmosphere for up to 24 hours a day since oil was discovered on our lands in 1958. He accused Shell of double standards, of racism and asked why a company that was rightly proud of its efforts to preserve the environment in the west would deny the Ogoni the same.
In response to his campaign, Shell armed, financed and otherwise colluded with the Nigerian military regime to repress the non-violent movement, leading to the torture and shootings of Ogoni people as well as massive raids and the destruction of Ogoni villages. In an infamous memo, Colonel Paul Okuntimo, the head of the military taskforce sent to pacify Ogoni, boasted that Shell provided the logistics for his soldiers. In one incident, Shell was building an oil pipeline and requested support from the Nigerian military. The pipeline destroyed Karalolo Kogbara’s farm and, as she was crying over her lost crops, the soldiers shot her. In another incident, Uebari N-nah was shot and killed by soldiers near a Shell flow station; the soldiers were requested by and later compensated by Shell.
A year after the executions, some of the relatives of what has become known as the “Ogoni Nine” filed a federal lawsuit against Shell in a district court in New York. We felt we would not get a fair hearing in a Nigeria groaning under the very same military dictatorship that had colluded with Shell to violate the human rights of our relatives and our community.
In response Shell, which denied that it encouraged violence against Ken Saro-Wiwa, or other Ogonis, and said it attempted to persuade the Nigerian government to grant clemency to the Ogoni 9, hired the most expensive legal minds to prevent us from holding them to account for their actions in the US. Their filibustering brought 13 years of time, four spent arguing over where they should stand trial.
No doubt Shell will try to present themselves as the victims, whose only interest was to produce hydrocarbons in a “challenging” business environment. But can you be so sure of Shell? This, after all, is a company that, as revealed in an investigation by this paper in January 1996, lied about importing arms to Nigeria. And even its own consultants concluded in a 2003 report that its community development schemes were fanning the flames of conflict in the Niger Delta. Shell declined to publish the results. Moreover, this is a corporation that was widely reported to have misled investors and shareholders in 2004 about the size of its reserves in places like Nigeria.
For that financial violation, the New York stock exchange moved quickly to protect the rights of shareholders and investors and Shell was fined $100m. It took less than two years to hold a multinational corporation to account in a US court for financial violations in a foreign jurisdiction.
And yet it has taken 14 years to bring a case to trial against the same multinational corporation in a US court for human rights violations.
All over the globe, people are becoming better informed about the global economy. People are joining the dots that connect the oil under their farms to the extravagant lifestyles in the west. You can make these connections via cable television in my village even thought there is no pipe-borne water and the electricity mostly comes from a diesel generator. There is increasing awareness of the connections between irreversible climate change and our thirst for fossil fuels. More and more people are now feeling the effects of unregulated corporations.
My father was not against oil exploration and production. He appreciated many of the benefits of capitalism, valued the “can-do” spirit, the innovation and would never deny the right of anyone to seek adequate reward and fulfilment from their risk and sweat equity. But can we continue to put profits before people and the planet? How do we monitor institutions and organisations that have the capacity to operate and organise themselves beyond the regulation and jurisdiction of the current regimes of global governance?
Ken Saro-Wiwa always maintained that Shell would eventually come to see him as their greatest friend. He believed that the day would come when Shell would understand that its social licence to operate is as valuable as its commercial rights. In a competitive and uncertain world where the price of doing business becomes ever more unpredictable, where more players – Russians, Indians and Chinese – are able to compete for drilling rights, it will become ever more important to win the battle for local hearts and minds to advocate for a world run on mutual benefit rather than exploitation.
For the relatives, the trial remains our last opportunity to close this sad chapter in our lives. For 12 years, we have all separately developed strategies to survive, living with the anger and the rage that one’s relative was unjustly murdered and that many of the institutions and individuals who were responsible for human rights violations continued not only to get away with murder but also to profit from their crimes.
We have remained dignified while the world has moved on. Few have ever wondered about the emotional or financial welfare of the victims but real lives, real people were destroyed.
In the face of the provocations and psychological trauma of all this, I have tried to maintain a dignified position, worked assiduously to deny myself the right to grieve in order to find a lasting solution to the challenges of the Ogoni and the Niger Delta in Nigeria.
The day after my father was hanged, I was asked my opinion of Shell and I didn’t hesitate to answer that Shell was part of the problem and must be part of the solution.
I haven’t changed my opinion. I am not interested in retributive justice but a justice that is creative, a justice that enables all stakeholders in this affair to account for and learn lessons from the past so that we can all move forward within a constructive and sustainable framework. We have to remain committed to building the kind of world that ensures that people who live on natural resource-bearing areas are not treated as collateral damage in a senseless race for profit.
With all of its experience in Nigeria, Shell knows that such creative justice is possible and the time for us to move in that direction is at hand.

by Michael Moore
June 1, 2009
I write this on the morning of the end of the once-mighty General Motors. By high noon, the President of the United States will have made it official: General Motors, as we know it, has been totaled.
As I sit here in GM’s birthplace, Flint, Michigan, I am surrounded by friends and family who are filled with anxiety about what will happen to them and to the town. Forty percent of the homes and businesses in the city have been abandoned. Imagine what it would be like if you lived in a city where almost every other house is empty. What would be your state of mind?
It is with sad irony that the company which invented “planned obsolescence” — the decision to build cars that would fall apart after a few years so that the customer would then have to buy a new one — has now made itself obsolete. It refused to build automobiles that the public wanted, cars that got great gas mileage, were as safe as they could be, and were exceedingly comfortable to drive. Oh — and that wouldn’t start falling apart after two years. GM stubbornly fought environmental and safety regulations. Its executives arrogantly ignored the “inferior” Japanese and German cars, cars which would become the gold standard for automobile buyers. And it was hell-bent on punishing its unionized workforce, lopping off thousands of workers for no good reason other than to “improve” the short-term bottom line of the corporation. Beginning in the 1980s, when GM was posting record profits, it moved countless jobs to Mexico and elsewhere, thus destroying the lives of tens of thousands of hard-working Americans. The glaring stupidity of this policy was that, when they eliminated the income of so many middle class families, who did they think was going to be able to afford to buy their cars? History will record this blunder in the same way it now writes about the French building the Maginot Line or how the Romans cluelessly poisoned their own water system with lethal lead in its pipes.
So here we are at the deathbed of General Motors. The company’s body not yet cold, and I find myself filled with — dare I say it — joy. It is not the joy of revenge against a corporation that ruined my hometown and brought misery, divorce, alcoholism, homelessness, physical and mental debilitation, and drug addiction to the people I grew up with. Nor do I, obviously, claim any joy in knowing that 21,000 more GM workers will be told that they, too, are without a job.
But you and I and the rest of America now own a car company! I know, I know — who on earth wants to run a car company? Who among us wants $50 billion of our tax dollars thrown down the rat hole of still trying to save GM? Let’s be clear about this: The only way to save GM is to kill GM. Saving our precious industrial infrastructure, though, is another matter and must be a top priority. If we allow the shutting down and tearing down of our auto plants, we will sorely wish we still had them when we realize that those factories could have built the alternative energy systems we now desperately need. And when we realize that the best way to transport ourselves is on light rail and bullet trains and cleaner buses, how will we do this if we’ve allowed our industrial capacity and its skilled workforce to disappear?
Thus, as GM is “reorganized” by the federal government and the bankruptcy court, here is the plan I am asking President Obama to implement for the good of the workers, the GM communities, and the nation as a whole. Twenty years ago when I made “Roger & Me,” I tried to warn people about what was ahead for General Motors. Had the power structure and the punditocracy listened, maybe much of this could have been avoided. Based on my track record, I request an honest and sincere consideration of the following suggestions:
1. Just as President Roosevelt did after the attack on Pearl Harbor, the President must tell the nation that we are at war and we must immediately convert our auto factories to factories that build mass transit vehicles and alternative energy devices. Within months in Flint in 1942, GM halted all car production and immediately used the assembly lines to build planes, tanks and machine guns. The conversion took no time at all. Everyone pitched in. The fascists were defeated.
We are now in a different kind of war — a war that we have conducted against the ecosystem and has been conducted by our very own corporate leaders. This current war has two fronts. One is headquartered in Detroit. The products built in the factories of GM, Ford and Chrysler are some of the greatest weapons of mass destruction responsible for global warming and the melting of our polar icecaps. The things we call “cars” may have been fun to drive, but they are like a million daggers into the heart of Mother Nature. To continue to build them would only lead to the ruin of our species and much of the planet.
The other front in this war is being waged by the oil companies against you and me. They are committed to fleecing us whenever they can, and they have been reckless stewards of the finite amount of oil that is located under the surface of the earth. They know they are sucking it bone dry. And like the lumber tycoons of the early 20th century who didn’t give a damn about future generations as they tore down every forest they could get their hands on, these oil barons are not telling the public what they know to be true — that there are only a few more decades of useable oil on this planet. And as the end days of oil approach us, get ready for some very desperate people willing to kill and be killed just to get their hands on a gallon can of gasoline.
President Obama, now that he has taken control of GM, needs to convert the factories to new and needed uses immediately.
2. Don’t put another $30 billion into the coffers of GM to build cars. Instead, use that money to keep the current workforce — and most of those who have been laid off — employed so that they can build the new modes of 21st century transportation. Let them start the conversion work now.
3. Announce that we will have bullet trains criss-crossing this country in the next five years. Japan is celebrating the 45th anniversary of its first bullet train this year. Now they have dozens of them. Average speed: 165 mph. Average time a train is late: under 30 seconds. They have had these high speed trains for nearly five decades — and we don’t even have one! The fact that the technology already exists for us to go from New York to L.A. in 17 hours by train, and that we haven’t used it, is criminal. Let’s hire the unemployed to build the new high speed lines all over the country. Chicago to Detroit in less than two hours. Miami to DC in under 7 hours. Denver to Dallas in five and a half. This can be done and done now.
4. Initiate a program to put light rail mass transit lines in all our large and medium-sized cities. Build those trains in the GM factories. And hire local people everywhere to install and run this system.
5. For people in rural areas not served by the train lines, have the GM plants produce energy efficient clean buses.
6. For the time being, have some factories build hybrid or all-electric cars (and batteries). It will take a few years for people to get used to the new ways to transport ourselves, so if we’re going to have automobiles, let’s have kinder, gentler ones. We can be building these next month (do not believe anyone who tells you it will take years to retool the factories — that simply isn’t true).
7. Transform some of the empty GM factories to facilities that build windmills, solar panels and other means of alternate forms of energy. We need tens of millions of solar panels right now. And there is an eager and skilled workforce who can build them.
8. Provide tax incentives for those who travel by hybrid car or bus or train. Also, credits for those who convert their home to alternative energy.
9. To help pay for this, impose a two-dollar tax on every gallon of gasoline. This will get people to switch to more energy saving cars or to use the new rail lines and rail cars the former autoworkers have built for them.
Well, that’s a start. Please, please, please don’t save GM so that a smaller version of it will simply do nothing more than build Chevys or Cadillacs. This is not a long-term solution. Don’t throw bad money into a company whose tailpipe is malfunctioning, causing a strange odor to fill the car.
100 years ago this year, the founders of General Motors convinced the world to give up their horses and saddles and buggy whips to try a new form of transportation. Now it is time for us to say goodbye to the internal combustion engine. It seemed to serve us well for so long. We enjoyed the car hops at the A&W. We made out in the front — and the back — seat. We watched movies on large outdoor screens, went to the races at NASCAR tracks across the country, and saw the Pacific Ocean for the first time through the window down Hwy. 1. And now it’s over. It’s a new day and a new century. The President — and the UAW — must seize this moment and create a big batch of lemonade from this very sour and sad lemon.
Yesterday, the last surviving person from the Titanic disaster passed away. She escaped certain death that night and went on to live another 97 years.
So can we survive our own Titanic in all the Flint Michigans of this country. 60% of GM is ours. I think we can do a better job.
Yours,Michael MooreMMFlint@aol.comMichaelMoore.com

The global economic crisis is exacerbating human rights abuses, Amnesty International has warned.
In its annual report, the group said the downturn had distracted attention from abuses and created new problems.
Rising prices meant millions were struggling to meet basic needs in Africa and Asia, it said, and protests were being met with repression.
Political conflict meant people were suffering in DR Congo, North Korea, Gaza and Darfur, among others, it said.
‘Time-bomb’
The 400-page report, compiled in 157 countries, said that human rights were being relegated to the back seat in pursuit of global economic recovery.
See region by region
The world’s poorest people were bearing the brunt of the economic downturn, Amnesty said, and millions of people were facing insecurity and indignity.
Migrant workers in China, indigenous groups in Latin America and those who struggled to meet basic needs in Africa had all been hit hard, it said.
AMNESTY REPORT
Amnesty International Report 2009: State of the World’s Human Rights [6.95 MB]
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Where people had tried to protest, their actions had in many cases been met with repression and violence.
The group warned that rising poverty could lead to instability and mass violence.
“The underlying global economic crisis is an explosive human rights crisis: a combination of social, economic and political problems has created a time-bomb of human rights abuses,” said Amnesty’s Secretary General, Irene Khan.
The group is launching a new campaign called Demand Dignity aimed at tackling the marginalisation of millions through poverty.
World leaders should set an example and invest in human rights as purposefully as they invest in economic growth, Ms Khan said.
“Economic recovery will be neither sustainable nor equitable if governments fail to tackle abuses that drive and deepen poverty, or armed conflicts that generate new violations,” she said.
See below for highlights of the report by region

AFRICA
Amnesty says the economic crisis has had a direct impact on human rights abuses on the continent.
“People came into the streets to protest against the high cost of living,” Erwin van der Borght, Amnesty’s Africa programme director, told the BBC’s Network Africa programme.
FROM BBC WORLD SERVICE
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“The reaction we saw from the authorities was very repressive. For example, in Cameroon about 100 people were killed in February last year.”
But the bulk of Amnesty’s report concentrated on the continent’s three main conflict zones: the Democratic Republic of Congo, Somalia and Sudan.
In DR Congo, the focus was on the east where it said civilians had suffered terribly at the hands of government soldiers and rebel groups. The Hutu FDLR movement, for example, was accused of raping women and burning people alive in their homes.
Amnesty said it was also the civilians in Somalia who bore the brunt of conflict, with tens of thousands fleeing violence and hundreds killed by ferocious fighting in the capital, Mogadishu. It also highlighted the killing and abduction of journalists and aid workers.
In Sudan, Amnesty catalogued a series of abuses including the sentencing to death of members of a rebel group, a clampdown on human rights activists and the expulsion of several aid groups following the issuing of an international arrest warrant against President Omar al-Bashir.
A number of countries, including Zimbabwe and Ethiopia, were criticised for intimidating and imprisoning members of the opposition.
And Nigeria came under fire for the forced evictions of thousands of people in the eastern city of Port Harcourt.
ASIA
Across the region, millions fell further into poverty as the cost of basic necessities rose, Amnesty said.
In Burma, the military government rejected international aid in the aftermath of Cyclone Nargis and punished those who tried to help victims of the disaster. It continued campaigns against minority groups which involved forced labour, torture and murder, Amnesty said.
In North Korea, millions are said to have experienced hunger not seen in a decade and thousands tried to flee, only to be caught and returned to detention, forced labour and torture. In both North Korea and Burma, freedom of expression was non-existent.
In China, the run-up to the Beijing Olympic Games was marred by a clamp-down on activists and journalists, and the forcible evictions of thousands from their homes, the report said. Ethnic minorities in Xinjiang and Tibet continued to suffer from systematic discrimination, witnessing unrest followed by government suppression.
Millions of Afghans faced persistent insecurity at the hands of Taliban militants. The Afghan government failed to maintain the rule of law or to provide basic services to many. Girls and women particularly suffered a lack of access to health and education services.
In Sri Lanka, the government prevented international aid workers or journalists from reaching the conflict zone to assist or witness the plight of those caught up in fighting between government troops and Tamil Tiger rebels.
MIDDLE EAST AND NORTH AFRICA
Israel’s military operation in Gaza in December 2008 caused a disproportionate number of civilian casualties, Amnesty said. Its blockade of the territory “exacerbated an already dire humanitarian situation, health and sanitation problems, poverty and malnutrition for the 1.5 million residents”, according to the report.
On the Palestinian side, both Hamas and the Palestinian Authority were accused of repressing dissent and detaining political opponents.
The death penalty was used extensively in Iran, Iraq, Yemen and Saudi Arabia. Across the region, women faced discrimination both under the law and in practice, Amnesty said, and many faced violence at the hands of spouses or male relatives.
Governments that included Algeria, Iraq, Lebanon, Syria and Yemen are said to have used often sweeping counter-terrorism laws to clamp down on their political opponents and to stifle legitimate criticism.
AMERICAS
Indigenous communities across Central and South America were disproportionately affected by poverty while their land rights are ignored, Amnesty said. Development projects on indigenous land were often accompanied by harassment and violence.
Women and girls faced violence and sexual abuse, particularly in Haiti and Nicaragua. The stigma associated with the abuse condemned many to silence, the report said, while laws in some nations meant that abortion was not available to those who became pregnant as a result of abuse or assault.
Gang violence worsened in some nations; in Guatemala and Brazil evidence emerged of police involvement in the killings of suspected criminals, the report found.
America continued to employ the death penalty, the report noted, and concern persisted over foreign nationals held at America’s Guantanamo Bay detention centre, although the report acknowledged the commitment by US President Barack Obama to close it down.
EUROPE AND CENTRAL ASIA
Civilians paid a high price for last year’s conflict between Russia and Georgia, Amnesty said. Hundreds of people died and 200,000 were displaced. In many cases, civilians’ homes and lives were devastated.
Many nations continued to deny fair treatment to asylum seekers, with some deporting individuals or groups to countries where they faced the possibility of harm.
Roma (gypsies) faced systematic discrimination across the region and were largely excluded from public life in all countries.
Freedom of expression remained poor in countries such as Belarus, Uzbekistan, Turkmenistan and other Central Asian nations.

For a moment, my heart leapt. The headline on the front of yesterday’s Daily Mail contained the words travel, scandal, ­extortionate and £6.2. I imagined, until I read it properly, that it referred to the £6.2bn contract to expand the M25 motorway, which has just been signed. Some hope. “The £6.2m bill: scandal of how MPs are taking taxpayers for a ride with extortionate travel expenses” referred to a rip-off precisely 1,000th of the size of the travel expenses scandal that interests me.
I understand the public anger and ­fascination about MPs’ expenses, and the burning question of whether you can obtain capital gains tax exemption on your second duck house. But it is microscopic compared with the corruption that has been bubbling along merrily for 15 years in the UK, unmolested by the tabloid press.
In April, the widening of four sections of the M25 was to have cost you and me £5bn. This was already a spectacular rip-off. The Campaign for Better Transport had calculated that the same amount of extra road space – if it were really needed – could have been created for £478m. But somehow, over the past four weeks, the £5bn for widening four sections of motorway has mutated into £6.2bn for widening two. In Sicily, officials agree to terms like this with the help of dainty gifts like horse’s heads and waistcoats full of fish. In the UK, the government ­volunteers them without any obvious inducement.
There’s nothing remarkable about this inflation: it appears to be an inherent property of the government’s private finance initiative schemes. The PFI allows consortiums of banks, construction and service companies to build and run our public infrastructure. Though the government maintains that this offers better value than using public money, in reality the numbers behind all PFI projects are rigged. While the government retains much of the risk, the investors keep the profits, which often run to many times the value of the schemes.
The public liability incurred so far by the private finance initiative is £215bn. Much of this spending (half? three-­quarters? – the deals are so complex and opaque that we will never know for sure) is pure pork fat. One day the repayments will destroy Britain’s public finances. This extravagance makes our MPs look like ascetics.
But this waste will never feature on the front page of the Daily Mail – or any page at all. Though it purports to speak for the lower middle classes, the Mail serves the rentier class, which ­benefits from these deals. The issue is also so complex that it is hard to see how it could be conveyed in a tabloid story. You have only to write the words private finance initiative to lose 90% of your readers.
Across 12 years of researching this issue, I have kept running into the brick wall of public indifference. I have used every conceivable device to try to convey the scope and scale of this rip-off. None of them works. Like the academics Jean Shaoul and Allyson ­Pollock, the magazines Private Eye and Red Pepper, and the Sunday Telegraph’s columnist Liam Halligan, all of whom have spent years exposing this scandal, I appear to have been wasting my time. The issue is too remote and too complex to ignite public indignation. The scheme’s obscurity has protected it from the outrage now being directed towards MPs.
But just in case anyone is still reading, I’ll try again. The terms offered by the new M25 scheme are so generous that an orang-utan in a suit and tie couldn’t fail to clean up. The new price appears to represent the cost to the ­government of keeping the banks in the deal. The scheme is meant to be ready in time for the Olympics, but the companies involved have spun out the negotiations for so long – demanding ever more outrageous terms – that the government is now prepared to pay almost any price to get the road widened on time, regardless of future liabilities. The option of tackling the problem by reducing the volume of traffic – an orbital coach network is the most obvious solution – was never considered. When Alistair Darling was transport ­secretary, he was asked about this alternative in the Commons. He dismissed it out of hand.
One of the consistent features of PFI is that the projects are reverse-engineered to meet the demands of corporate investors. This, for example, is how the £30m public scheme to refurbish Coventry’s two hospitals became a £410m private scheme to knock them both down and rebuild one of them – containing fewer beds and fewer doctors and nurses. The old scheme was too cheap to attract private money. Similarly, an orbital bus system offers only modest profits.
Last year, the Treasury promised to bring private finance deals on to the government’s balance sheets, in order to meet international financial reporting standards. Most PFI schemes don’t count as public debt, which is one of the reasons why the government finds them attractive. (The other is that this corporate welfare bought New Labour the support of business groups and sections of the rightwing press.) But on 13 May, at the height of the MPs’ expenses scandal, the Treasury quietly reneged on this promise.
In opposition, when Labour opposed PFI, Darling complained that “apparent savings now could be countered by the formidable commitment on revenue expenditure in years to come”. Now, as chancellor of the exchequer, he has decided to keep disguising this commitment from the public. Government departments will publish two sets of accounts: one that keeps PFI schemes on the books to meet international standards, another that keeps them off the books in order to conceal the extent of public liabilities. This is what Enron did: it produced different sets of accounts for different audiences.
The Treasury issued no press release to announce this change of policy, and refuses to send me its guidance to government departments, which explains how the new rules will work. The private finance initiative, like parliament, has been protected for years by secrecy and obfuscation.
We never could afford this ­extravagance, but to keep squandering money on PFI schemes today, when we know how much trouble government finances are in, is lunacy. Last week, the ratings agency Standard & Poor’s warned that the UK’s credit rating could be cut. No one in this government appears to care about the extra, unacknowledged debt it is loading on to ­future administrations through PFI. ­Because these schemes run for 25 or 30 years, their liabilities are someone else’s problem.The health secretary, Alan Johnson, has just called for a “root and branch look at how our democracy works”. Is the notion that this might include a ­reappraisal of the private finance initiative too much to hope for? Yes. There is no tabloid campaign against this ­corruption, nor will there ever be. The Conservatives, who invented PFI, have no interest in scrapping it. The real ­British expenses scandal appears to be immune to exposure.

Let’s get this out of the way first: Sonia Sotomayor is not a perfect liberal judge. She is not astoundingly progressive or notably feminist. She isn’t a tireless champion of civil rights or a first amendment absolutist. She is, however, a highly intelligent, fair-minded and experienced judge who will make a fine addition to the US supreme court, and who progressives should fully support.
Much has been made of Sotomayor’s life story, and it is impressive. Born and raised into a Puerto Rican family living in a housing project in the South Bronx, Sotomayor earned a scholarship to Princeton University, where she graduated summa cum laude. She went on to Yale Law School, where she was editor of the Yale Law Journal, and after graduating worked in the New York district attorney’s office. She was nominated to the federal district court by George HW Bush and elevated to the second circuit court of appeals by Bill Clinton. In both cases, her confirmation went smoothly.
Republicans and conservatives will argue that her nomination is an exercise in affirmative action, and that Barack Obama has effectively posted a “White males need not apply” sign on the doors of the supreme court – a funny complaint about an institution that is almost entirely white and male. Democrats and liberals will predictably trip over themselves arguing that Sotomayor’s race and gender don’t matter, even while race and gender matter.
The reality, of course, is that every supreme court justice comes in with a set of life experiences that are shaped not only by race and gender, but by experiences both professional and personal – it’s just that few people consider that whiteness and maleness are not neutral identities and may shape one’s perspectives and legal opinions just as much as femaleness or non-whiteness. Sotomayor herself has said: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” And she’s right.
While that quote is sure to be brought up as evidence that she’s a “liberal activist”, it’s more indicative of the kind of self-awareness and reflection we want in a supreme court justice.
Judges have a marked historical tendency to move left over their supreme court tenures. There remains quite a bit of debate over why there’s such a pronounced liberal shift, and it is no doubt a complex phenomenon. But I suspect it has to do in part with a slow realisation that the law has a real impact on peoples’ lives, and that the law school classroom model of the law as a near-science and justice as consistency is fundamentally flawed and entirely unrealistic. “The law” as an academic exercise is certainly interesting, but one’s view is bound to shift when, as supreme court justice Anthony Kennedy put it, “suddenly, there’s a real person there.”
Sotomayor is reflective and honest enough to recognise that her experiences – as a woman of colour, as a prosecutor, as member of a working-class family, as a judge – inform her understanding of and her empathy toward whichever real person is standing before her. While other judges may downplay the role that their race, gender and experience play in their legal work, those things do exert influence. Sit on the bench long enough and it must eventually become clear that rigidly interpreting language, deferring to precedent and valuing consistency above all else often result in thoroughly unjust outcomes.
So far, Sotomayor has been the picture of moderation (albeit left-leaning moderation). She has had good first amendment decisions and one particularly bad one (Doninger v Niehoff, where her panel affirmed the right of a school to disqualify a student from running for senior class secretary after the student posted vulgar and misleading school-related comments on her personal website).
She is deferential to law enforcement, leading to decisions like United States v Howard, where she held that state troopers could lure suspects away from their vehicle in order to search it for drugs.
And the decision she wrote in Center for Reproductive Law and Policy v Bush, which held that a Bush-era law limiting reproductive healthcare aid to developing nations did not violate the first amendment, due process or equal protection rights, certainly did not please any reproductive justice advocates.
But those are hardly reflective of her entire body of work as a judge. She’s very plaintiff-friendly in discrimination cases. She wrote a dissent arguing that the Voting Rights Act should apply when evaluating state felon disenfranchisement laws. She stood up for first amendment rights in a case where the protected speech/expression was bigoted and presumably not easy to defend. She supported the right of an inmate to bring a case against a private corporation for redress of constitutional violations (a position that was narrowly reversed by the supreme court in an opinion written by Rehnquist).
She has written particularly progressive opinions in the area of disability discrimination. She has sustained claims of a hostile work environment in cases where female employees were subjected to sexual harassment and gender discrimination.
It’s also worth noting that she is filling the seat of a moderate justice, and that if this confirmation fails, it will be because conservatives succeed in their smear campaign – not because she’s unqualified and certainly not because she’s too liberal. That means that Obama’s next pick would likely be even more middle-of-the-road, and undoubtedly less appealing to feminists and progressives.
Sotomayor is far from a perfect progressive, and even further from the rightwing caricature of her as a liberal activist judge. But her breadth of experience, both professional and personal, make her a highly qualified jurist, and would lend the court much-needed diversity of perspective. She is smart, inquisitive and concerned with justice above all else. And that is precisely what a supreme court justice should be.

New report from Harvard Law School finds that UN documents on Burma provide grounds for investigation into international crimes; calls for more concerted UN action on Burma

Cambridge, Mass. – Five of the world’s leading international jurists have commissioned a report from the International Human Rights Clinic at Harvard Law School, calling for the UN Security Council to act on more than fifteen years of condemnation from other UN bodies on human rights abuses in Burma. The Harvard report, Crimes in Burma, comes in the wake of renewed international attention on Burma, with the continued persecution of Nobel Peace Prize recipient Aung San Suu Kyi. The report concludes with a call for the UN Security Council to establish a Commission of Inquiry into crimes against humanity and war crimes in Burma.The Harvard report is based on an analysis of scores of UN documents – including UN General Assembly and Commission on Human Rights resolutions, as well as reports from several different Special Rapporteurs. These indicate that human rights abuses in Burma are widespread, systematic, and part of state policy – legal terms that justify further investigation and strongly suggest Burma’s military regime may be committing crimes against humanity and war crimes prosecutable under international law. Major abuses cited by the United Nations include forced displacement of over 3,000 villages in eastern Burma, and widespread and systematic sexual violence, torture, and summary execution of innocent civilians.Yet, despite such documentation from multiple UN organs, the UN Security Council has not moved to investigate potential crimes against humanity or war crimes in Burma, as it has in other areas of the world, including Darfur and Rwanda.“Over and over again, UN resolutions and Special Rapporteurs have spoken out about the abuses that have been reported to them in Burma. The UN Security Council, however, has not moved the process forward as it should and has in similar situations such as those in the former Yugoslavia and Darfur,” the jurists write in the report’s preface. “In the cases of Yugoslavia and Darfur, once aware of the severity of the problem, the UN Security Council established a Commission of Inquiry to investigate the gravity of the violations further. With Burma, there has been no such action from the UN Security Council despite being similarly aware of the widespread and systematic nature of the violations.”The five jurists who commissioned the report, from Africa, Asia, Europe, and North and South Africa, are Judge Richard Goldstone (South Africa), Judge Patricia Wald (United States), Judge Pedro Nikken (Venezuela), Judge Ganzorig Gombosuren (Mongolia), and Sir Geoffrey Nice (United Kingdom). Among other accomplishments, Judge Goldstone served on South Africa’sConstitutional Court and was the first prosecutor at both the International Criminal Tribunals for the Former Yugoslavia and for Rwanda. Judge Wald served as Chief Judge of the U.S. Court of Appeals for the District of Columbia and as a judge on the International Criminal Tribunal for the former Yugoslavia. Judge Nikken served as President of the Inter-American Court of Human Rights. Judge Gombosuren served as a Supreme Court Justice in Mongolia, and Sir Nice was the deputy prosecutor of the International Criminal Tribunal for the former Yugoslavia and the principal prosecution trial attorney in the case against Slobodan Milosevic in the Hague.Each of the five jurists has dealt directly with severe human rights abuses in the international system, and all five call for the UN Security Council to establish a Commission of Inquiry to investigate and report on crimes against humanity and war crimes in Burma.The Harvard report specifically examines four international human rights violations documented by UN bodies over the past fifteen years: sexual violence, forced displacement, torture, and extrajudicial killings. The report focuses on UN documents since 2002, to allow examination of the most up-to-date UN material, although UN reports dating back to 1992 have consistently condemned a wide-range of violations in Burma.Tyler Giannini, the Clinical Director of the Human Rights Program at HarvardLaw School and one of the report’s authors, said its findings clearly demonstrate that a Commission of Inquiry on Burma should proceed.“The UN Security Council has taken action regarding Yugoslavia, Rwanda, and Sudan when it identified information strongly suggesting the existence of crimes against humanity and war crimes,” said Giannini. “As our research shows, UN documents clearly and authoritatively suggest that the human rights abuses occurring in Burma are not isolated incidents – they are potential crimes against humanity and war crimes. Failure by the UN Security Council to take action and investigate these crimes could mean that violations of international criminal law will go unchecked.”For more information on Crimes in Burma, or to view a copy of the report, visit http://www.law.harvard.edu/programs/hrp/newsid=59.html.For media interviews in the United States, please contact Michael Jones at 617-595-7868 or mijones@law.harvard.edu, or Julianne Stevenson at 617-682-5519 orjstevenson@llm09.law.harva
rd.edu. For media interviews in Thailand, please contact Tyler Giannini at +66 89 020 6646 or giannini@law.harvard.edu. (read less)
***FOR IMMEDIATE RELEASE*** 21 May 2009 International Human Rights Clinic at Harvard Law SchoolWorld’s Leading Jurists Call for Investigation into Crimes against Humanity and War Crimes in… (read more)
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The American Civil Liberties Union, PEN American Center and Statewatch invite you to join experts from the US and UK at Garden Court Chambers on 31 May 2009 for a discussion of mass surveillance, its implications, and challenges to government policy and practice.

The panel will be moderated by CARLA FERSTMAN, director of REDRESS, a human rights organisation that helps torture survivors obtain justice and reparation.

The panel will feature:JAMEEL JAFFER, director of the American Civil Liberties Union (ACLU)’s National Security ProjectPATRICK RADDEN KEEFE is a fellow at the Century Foundation, a progressive policy think tank, and a frequent contributor to The New Yorker, The New York Review of Books, Slate, and other publications on issues of national security, civil liberties, human rights, and the rule of law.BEN HAYES, an associate director of StatewatchLARRY SIEMS, director of PEN American Center’s Freedom to Write program, which defends writers facing persecution around the world, and PEN’s Campaign for Core Freedoms, a major initiative to turn back new threats to freedom of expression in the United States.

Date:Sunday, May 31, 2009

Time:5:00pm – 6:30pm

Location:Garden Court Chambers

Street:57- 60 Lincoln’s Inn Fields

Nearest tube: Holborn

‘Fish rot from the head first’. The stink arising from the outright corruption, outright thievery – to give it its proper name – from the ‘public purse’, by the overwhelming majority of ‘dis-honourable members’ of the House of Commons presents a nauseating spectacle. It also discredits not just parliament and its inhabitants but the capitalist system itself.
Young people show their anger at the system, photo Paul Mattsson
Sometimes an event acts as a catalyst to bring all the festering discontent to the surface. The revelations first aired in the Daily Telegraph have had such an effect. While the shadow of mass unemployment looms over working-class people, with poverty worse than at the time of Thatcher, MPs are revealed to have filled their boots with ludicrously exaggerated ‘expenses’. This has prompted some outraged ‘respectable’ journalists to call for the prosecution of some MPs.
Under Major, it was ‘cash for questions’, with Blair, ‘honours’ for business people. Now under Gordon Brown, everything is reduced to the ‘cash nexus’, as the nineteenth century writer Carlyle once said. MPs have claimed ‘cash for cleaners’, carpets, saunas – one even to be installed in an MP’s home – swimming pools, gardeners, barbecues, dog food, and cushions – silk ones, naturally, 17 in all – “to ease the repose of Keith Vaz”. Tory MP and former minister John Selwyn Gummer claimed for a mole catcher; ironic given the leaking of MPs’ expenses and the prosecution of moles in the civil service! One MP claimed for a Kitkat and a Scottish Labour MP claimed for a 5p carrier bag! As Andrew Rawnsley commented in the Observer: “Well, he probably needs somewhere to stuff all his receipts.”
A Liberal Democrat MP takes cash for cosmetics and one male Tory MP, unbelievably claimed for tampons! John Prescott – that New Labour working-class ‘hero’ – demanded on his expense account “three faux Tudor beams for his castle in Hull”. He also claimed for two broken lavatory seats, prompting wags to declare: “It was two jags, then two shags, now it’s two bogs Prescott.”
Sham democracy
The sham of British ‘parliamentary democracy’ has been laid bare. Every major party is implicated in this real ‘criminal conspiracy’. Some parliamentary luminaries, such as a former deputy Speaker, have suggested that “parliament may have to be dissolved”. The depth of public disillusion is summed up by the august Observer commentator Rawnsley who used the language of the ‘street’ to signify the widespread disillusion: “The MP who claimed for horse manure? Well, why not when so many other parliamentarians simply don’t give a shit”!
With a few exceptions, these are apposite words for the majority of MPs. Those who already have shed-loads of cash, it seems, wanted more, like Barbara Follett – of the ‘wallet’ – and renegade Tory MP and now New Labour minister Shaun Woodward, who has a butler but also claimed his ‘expenses’. The MPs claim they needed to do this because of the ‘inadequacy’ of their parliamentary salary, which is… £64,000 a year!
Terry Fields MP, who took just the wage of an average worker, photo Steve Gardiner
What a contrast to the socialist and Marxist former MPs, Dave Nellist and the late Terry Fields and Pat Wall, who took just the wage of an average worker. But that was when the Labour Party at the bottom stood for working people.
Compare also the MPs to the lot of the poverty-stricken woman interviewed by the Guardian last week, trying to feed her family on a budget of £3 a head per day! Yet government minister James Purnell, while dipping his own snout into the trough, still intends to persecute and punish people like her on benefits through no fault of their own while MPs and bankers will probably get away scot free! Taken together with the scandal of bankers’ bonuses and the complete failure to deliver the basics of a job, a home and a decent income for millions of workers in this country, the whole system of parliament and capitalism is nakedly exposed.
The ‘institutions’ of this system – including parliament, as these revelations confirm – are discredited. If a mass workers’ party existed in Britain today, the revulsion felt over these and other measures which benefit the rich and punish the poor could be used to build a mass wave of opposition that could pose a real alternative. The ‘No2EU’ campaign for the European elections is the beginning of such an alternative.
Corrupt at every level
Socialists and the labour movement fought for and support the democratic conquests which exist. We and our forebears made the greatest sacrifices for the right to vote, a free press, trade union rights and representative systems at national and local level which could reflect the ‘will of the people’. But the present ‘parliament’ is revealed to be a million miles away from this ideal.
The press and media are controlled by a handful of rich moguls with the voice of ordinary people drowned out by a cacophony in favour of the ‘market’, which has utterly failed the majority of the population. Three almost identical parties – New Labour, the Tories and the Liberal Democrats – are mired in corruption, as these revelations have shown, and offer absolutely no way forward.
Parliament itself, with five-yearly elections and MPs on bloated salaries and expenses, is completely unrepresentative. Two centuries ago, the French philosopher Rousseau criticised the British parliamentary system: “If the English people think they are free, they deceive themselves; they are only free during the election of members of Parliament; as soon as these are elected, the people are slaves, they no longer count for anything… The deputies of the people thus are not nor can they be the people’s representatives.” An accurate picture of British democracy today!
The pioneers for democracy in Britain, the Chartists – the first independent workers’ party in history – demanded annual parliaments. When the first Labour MP, Keir Hardie, entered the House of Commons he was not paid and nor were any MPs. However, unlike Hardie, MPs then were mostly Tories and Liberals who had ‘independent incomes’. The very minimum that should now be demanded is that no MP should have ‘outside interests’, directorships or advisory positions with private companies, ie big business.
As Mark Lawson, the TV and art critic, has pointed out, why not go further and propose that no MP should receive more than the average wage? This would certainly thin out the ranks of MPs and would-be MPs from the ‘upper tiers’ of society but would make way for those more in touch with the feelings of the majority, ie working class people.
But in time it will be necessary to go further than this. The election of any representative for five years to an institution like the present parliament is inherently undemocratic. These MPs are not accountable to the constituents who elect them, other than once every five years, and even then their record is never properly put under scrutiny.
Socialists support all democratic rights, including voting for parliament. We would fight along with working people against any attempt to overthrow a democratically elected government as happened in Chile in 1973 and Spain in the 1930s.
Change needed
But a more representative, accountable system than we have at present is necessary. The House of Lords should be abolished; there should be a single assembly which combines the legislative and executive powers hitherto divided in Britain.
Members should be elected for a maximum of two years with votes at age 16. MPs could then be elected on the basis of democratic local assemblies with the right of recall by their constituents, and should receive the salary of a skilled worker.
Democracy like this would lead to greater participation by the mass of the population. A change in the electoral system to proportional representation would also be an improvement.
Compared to the present undemocratic set-up – which rests power in the hands of an elite – the above changes would represent a big step forward. In the absence of a mass workers’ party in Britain today, such demands and slogans are probably in advance of what most, even working-class, people would support at the present time. But the nausea arising from the revelations of thievery by parliament and parliamentarians is preparing the ground for the adoption of such bold demands in the future.
In the meantime, the salary of MPs must be cut to the level of the average wage. Where expenses are needed, they should be strictly necessary ones only – similar to what some building workers and others are paid as they travel the country in pursuit of their work. Moreover, rather than an ‘outside body’ checking and auditing expenses, why not scrutiny committees made up of workers, the unemployed, those forced onto benefits and small shopkeepers and business people threatened by the present recession?
The MPs’ expenses scandal will lead to recognition that a system based on production for profits for the few – the millionaires and billionaires – rather than for social needs of the majority, the millions, inevitably produces the kind of rottenness and corruption that we are witnessing.
We defend all democratic rights – which must also include today the abolition of the vicious anti-trade union laws inherited from Thatcher. But at the same time we aim for an extension of democracy, for a democratic socialist state, not the truncated ‘elected dictatorship’ which parliament is at present.

By Samuel Brittan
Published: April 30 2009 19:44 Last updated: April 30 2009 19:44

Capitalism is not a system that some government decided to install, as the Soviet leaders did with “socialism”. It evolved over many years. Once established, governments of many different stripes could try to copy it, with widely varying results. There has been a long cycle among opponents, who begin by declaring it immoral, go on to predict its inevitable collapse and, when that does not happen, return to its supposed immorality. The system will continue but with a less overblown financial sector.
One of the myths about the system is that it is just about markets and prices. Visitors to the most remote villages in the developing world have often remarked on the ubiquity of market activities. Successful capitalism requires a great deal more. At a minimum it also requires:
1. A basis for long-term contracts. Such contracts in turn require:
2. The rule of law. This does not just mean judges in wigs or parliamentary assemblies. It means generally understood rules of the game so that economic agents can make plans that will not be undermined by unpredictable political intervention, criminal action or any other destabilising activity.
3. A minimum of trust so that entrepreneurs and others can undertake projects without constantly looking over their shoulder to see that undertakings are observed, and that commercial partners are not looking for ways to renege on obligations or to twist their meaning.
4. So far, what has been said only defines mercantile societies going back to medieval city-states, Shakespeare’s Venice or even earlier. The word “capitalism” was popularised by Karl Marx in the middle of the 19th century to describe a world characterised by, among other things, “roundabout” methods of production involving structures such as factories, railways and steamships.
5. Capitalism depends on private ownership of the greater part – not necessarily the whole – of the means of production, distribution and exchange. Joseph Schumpeter, in a postscript added to the UK edition of his path-breaking Capitalism, Socialism and Democracy, remarked that only the nationalisation measures of the postwar Labour government counted as genuine socialist steps. All the rest, such as wage and price controls, trade restrictions or attempted “economic planning”, whether wise or unwise, could be found in many capitalist societies. The temporary state ownership of some banks does not count as state socialism so long as private banks are not prevented from starting up.
Some reformers have envisaged a market society based on workers’ co-operatives rather than traditional private ownership. This, for example, is what John Stuart Mill meant by socialism. Whether that is correct is a semantic matter. The point of substance is that although there have been individual successful examples of employee-owned enterprise, such as Britain’s John Lewis retail partnership or the Mondragón group in Spain’s Basque Country, there have been few, if any, examples of whole societies operated on these lines, outside of Tito’s Yugoslavia.and Cuba.
6. Capitalism works best when there is competition between producers. But the degree of competition varies immensely. Businessmen do not in practice always welcome competition and a commentator can be pro-capitalist without being pro-business. Free trade is best treated as part of the competition agenda rather than as a separate undiscussable good.
7. Successful capitalism requires a good deal of economic freedom, although not necessarily laisser faire. The defects of capitalism are often called market failures: things such as environmental overspills or inadequate provision of public services. Moreover, a market system does not even pretend to provide a just distribution of income and wealth, whatever that is. At different times observers have claimed to detect trends both to increasing concentration of income and wealth, and towards a levelling of differences. Vilfredo Pareto, the early 20th-century economist, claimed that in the very long run the pattern of pre-tax distribution is surprisingly stable. Contrary to what zealots claim, taxes and benefits can influence income and wealth distribution provided that care is taken not to kill the goose that lays the golden eggs.
8. The capitalist system requires at least the possibility of separating ownership from control. This has been facilitated by the rise of limited liability laws since about the middle of the 19th century. But the practice also give rise to what modern economists call the “principal agent problem”: how the owners can control the managers.
9. Although there is a variable and often high degree of ploughed-back profits, there must be provision for a capital market in which savers can lend to enterprises (and governments) whose investment needs exceed their own resources. Such arrangements, in turn, require a secondary market in paper titles to wealth, nowadays called stock exchanges.
10. Any market system requires a functioning money, both to avoid the wasteful complications of barter and to serve as a standard of value. It does not require literally zero inflation but cannot well cope with unpredictable wild fluctuations.
11. Capitalism also requires depositary institutions where people can store their money without hoarding it under the mattress.
“Boom and bust” has been a feature of capitalism from the beginning, originating partly in the alternation of moods of pessimism and optimism. Not all recessions originate in the financial sector but those that do have, on average, been more than twice as severe as those that do not.
The present credit crunch leaves more or less unaffected the arguments for and against the first seven principles affecting what is sometimes called the “real” side of the economy. But it calls into question present arrangements for 9, 10, 11 and aspects of 8 – what might be called the “financial side”. The mutual entanglement of savings and investment decisions, money creation and deposit banking, has caused much harm and there have been numerous ideas for separating them – my favourite being the proposal of Henry Simons, the US economist, for “narrow” banks that can hold only assets in cash, deposits with the central bank or short-term government securities and are therefore safe against a run. But it is not a panacea.
Clearly there will now be a trend back towards a more regulated type of capitalism, as in the 1930s. But not all the regulation will be very wise. The perennial problem of regulation is the concentration of producer interests, which makes for successful lobbying, and dispersion of consumer and general citizen interests, which are therefore more difficult to organise. Moreover, much discussion is vitiated by the assumption of omniscient and benevolent government instead of balancing market failure against government failure. There is a vast body of US writing on the subject known as “public choice” ignored by authors of fashionable critiques such as Nudge or Animal Spirits.
Another problem is that capitalism is nowadays global but regulation is still at the national level. The most difficult issues, however, arise on the moral side. The assumption that the pursuit of self-interest within the rules and conventions of society will also promote the public interest is not likely to survive – if only because the content of these rules is up for grabs. But it is all too likely to be succeeded by a mushy collectivist pseudo-altruism, in which jealousy and envy are given a free ride.
Perhaps something is to be learnt from the social market theorists of the postwar “German economic miracle”, who were by no means opposed to government intervention but had firm principles regarding its nature, purpose and duration. Personally, I would go further back still. I know that some financial types hate their subject being mixed up with alien topics such as the study of English literature. Yet more is to be learnt from the novelist Jane Austen, who took for granted the legitimacy of property titles but insisted that such rights had their obligations, than from modern tomes on business ethics.
www.samuelbrittan.co.uk