AU in conversation with: Aarif Abraham
Can you tell us a bit about your recent work?
“My current practice is a mix of international and domestic work. My international work is generally concerned with public international law, international criminal law and international human rights law, while my domestic work covers domestic criminal trials as well as human rights cases which often relate to judicial review, asylum and immigration, prison law, housing and mental health. The main difference between the two is that I tend to do more court-room advocacy work domestically, whereas my international work has an advisory / written focus until, of course, a case is instituted before an international mechanism.
As far as my recent work is concerned, I’m currently working on the Uyghur Tribunal as the Legal Advisor and the Co-Counsel. The Tribunal is looking into allegations of violations of international law in Xinjiang, China, and it is aiming to assess whether those alleged violations constitute international crimes or serious violations of international human rights law. Right now, I am assisting with the presentation of the evidence for the Panel to consider for the public hearings in June and September.
Another matter I’m working on involves looking at accountability for crimes committed against the Yazidis in Iraq and Syria by the so-called Islamic State in Iraq and Syria (“ISIS”). Some of that work may become public later this year or next.
One other recent project I worked on involved advising on the Genocide Amendment to the Trade Bill 2021-2022 (together with Sir Geoffrey Nice QC and the Coalition for Genocide Response). The reason the Genocide Amendment came about is because the UK, like many other countries around the world, has a duty under international law not to commit genocide, to prevent the occurrence of genocide wherever it may occur in the world, and to punish perpetrators of genocide. The UK has had a long-standing (and erroneous) position that it is only for the courts and tribunals to determine genocide, but if there is no court or tribunal to oversee the matter, or a court or tribunal does not have the jurisdiction to do so, there will never be a genocide determination. As a matter of international law, the UK must use all means reasonably available the instant it learns there is a serious risk of genocide occurring in any State in the world. There is no need for a court to determine a risk of genocide; this is something the government should do routinely in order to assess whether its duties under international law have been engaged. The UK government has refused to do this, as it has also refused to have a tribunal to determine the risk of genocide and/or ongoing genocide, and to accept that it has any sort of obligation until a situation is declared to be genocide. While that remains the UK government’s position today, as a result of the work going into the amendment, the UK has conceded it has to formalise a framework for genocide prevention. Part of that concession has meant that the UK government has passed its own version of the genocide amendment to the Trade Bill, which essentially allows parliamentarians to assess a serious risk of genocide. Whether that will be implemented in a manner consistent with the duties under the Genocide Convention remains to be seen.”
What is your book about and why do you think this topic deserves attention?
“My book, ‘A Constitution of the People and How to Achieve It’, is essentially concerned with how people can have a greater say in how they are governed. We are in a paradoxical world where we say we live in democratic societies, yet fundamental documents which are often the basis for that, are often created through revolution or conflict or both. These conflicts inevitably create winners and losers, so some people benefit, and some lose out when constitutions are designed and then ratified. My question is how can that be inclusive? For instance, women have long been locked out of constitutional processes, and so have minorities and ‘losers’ in any conflict. This book gave me an opportunity to compare two opposite extremes of a spectrum of constitution making: one is Bosnia and Herzegovina, which essentially had its constitution drafted in a couple of weeks by external powers as part of an international peace agreement. The Bosnian people themselves had no say in the process, and certainly not the women and minorities of the country. The Bosnian constitution has a formal and rigid structure, which some say has actually embedded and institutionalised conflict within it, although it was meant to resolve it. The other end of the spectrum is an uncodified constitution, which only Britain and New Zealand have. The British constitution is essentially an evolution of statutes, conventions and political practices which have developed over hundreds of years and give a certain degree of flexibility in constitution making, in contrast to the Bosnian one.
The reason for the comparison is that there have been crises in both Bosnia and Herzegovina and Britain. In Bosnia there is a risk of violent conflict in the future, as it is currently in a frozen conflict largely as a result of its current constitution. Some argue that Britain is also suffering a constitutional crisis, as there is the possibility of unilateral secession of Scotland, possibly Wales, and there are calls for reunion of Northern Ireland with Ireland. There is also acute political contestation over human rights and the role of the judiciary in the country and serious contestation between the judiciary, executive and legislative, in particular on the issue of parliamentary scrutiny. So, the question is: should we have a more inclusive, participatory and deliberative process of constitution-making and constitutional amendment, and if so, how do we go about that? The example of Bosnia, with its rigid constitution and formal structures, provides Britain with some lessons. And vice-versa, Bosnia has some lessons to learn from how flexible arrangements and unspoken conventions can actually introduce a very welcome flexibility in constitution making, which in turn allows greater adaptability.”
What do you think are the current challenges for international law?
“Regrettably, we live in a time of acute contestation, division and polarisation. The breakdown of the rule of law in domestic spheres often has a contributive effect on adherence to international law, norms and principles. Acceptance, adherence and enforcement of international law is thus our biggest challenge at the moment.
Three fundamental challenges derive from that. Firstly, one challenge is keeping together international institutions and bodies which deal with conflict resolution, accountability and justice. That’s reflective of the fact that there is little consensus about how state actors, agents, officials or individuals who carry out violations of international criminal law or human rights law should be held accountable and before which bodies.
Secondly, the protection of human rights defenders is a fundamental challenge. As much as institutions are under attack, human rights actors, lawyers and professionals are also under attack, whether that is domestically or internationally. That raises far greater concerns: it’s one thing to undermine institutions, but to undermine citizens who demand the fulfilment or realisation of their rights, essentially means there is no redress, and reduces hope only to the vestiges of the human heart.
Lastly, in the past ten years, what was understood to be a common framework of international human rights law has started to unravel. Domestically and internationally, there is now contestation about what fundamental rights are. What was previously accepted as customary international law has now been put into context with more conservative readings of rights which derive from particular ideological assumptions. That is a difficulty which will require some form of reconciliation amongst polarized actors in order to come to a shared understanding of fundamental rights. For this to happen it requires a positive, progressive and persistent engagement by all those who believe in a rules-based order – that means being proximate to injustice, taking practical action, and becoming an active hope – sitting on the sidewalk is not an option.”
Is law the same as justice?
“I’d say that the law at best is an approximation of justice. Justice is an ideal to which we all aspire. Whilst it is not always immediately attainable, it is also not unachievable; justice requires action as the first step, then development and cultivation. There are a number of things we can do to achieve justice, and that begins in our everyday interactions. You can’t hope to achieve justice on an international scale if you can’t do it on an immediate day-to-day level; whether that is justice in relation to your family, friends or colleagues. Justice far away cannot be achieved unless there is justice at home. Just the same, injustice abroad will be sure to follow you home.
In order for the law to become a closer approximation of justice, we need to work with everybody in our community, whether that is with people who are victims, survivors, advocates, lawyers, judges, policymakers and politicians. I think only a joined-up and community-led approach would allow the law to better address issues of injustice, whether that concerns the development of rights, the application of rights, or their fulfilment.”
What are your three pieces of advice for those interested in being a lawyer/barrister?
1. “Think about developing a specific skillset and expertise by finding the best opportunities for development, whether that’s in terms of drafting, developing your legal knowledge, or being able to give advice in writing or orally. Having a strong grounding and roots in those skills will certainly make you a better lawyer and a far better champion of rights. Good intentions alone are not enough!
2. Have a multi-specialist approach to your career. You do not necessarily need to specialise in a particular area of law in the early stages of your career. People think lawyers are people who have wanted to be lawyers since they were little, but that is not the case. For example, I did a degree in Politics, Philosophy and Economics at university, which gave me an unparalleled grounding in many disciplines and provided me with a broader perspective. I then started my career at a ‘magic circle’ corporate and commercial law firm in London (after dabbling and ruling out working in other professions!) The rigorous training in commercial litigation, public law and tax law allowed me to develop a range of skills which I could not have obtained elsewhere. This meant that when I started my work in international criminal law and human rights law – areas of law I always had a passion for – I was much better equipped with a range of practical skills, resilience and expertise.
3. If you do get work experience, give it your all. This is a small profession: people talk, and if you do good work it will stand the test of time. All the work you do will be relevant, and it will be a means to develop not only your network, but also your reputation.”
What brings you fulfilment in your role as a human rights barrister?
“It is a real privilege to do work which is both meaningful and impactful. Most of the work I do has a genuine impact on an individual or a set of individuals. There is no way to completely put a person in the position they would have been had the harm not occurred, but I think justice does provide some semblance of closure, accountability or rectification, and it is particularly satisfying to know you might have contributed to that. Being able to support and assist the less privileged, disenfranchised, discriminated or dispossessed is a honour in itself. Any of us can find ourselves in such a position and I am sure we would hope there was someone we can draw upon under such circumstances.
There is some satisfaction in being knowledgeable about the law and being able to deploy it effectively in different settings (for oneself or others). I sometimes reflect on this as a power (as well as a privilege) and it makes one think about the responsibility that comes with it – money and its pursuit cannot be the sole consideration in exercising either or both; there has to be a social and ethical dimension to having power and privilege. I also appreciate the fact that the ‘work’ that I do is in a profession that I have chosen, rather than it being imposed on me by diktat or necessity. That is quite a luxury to have in this day and age.”
Aarif’s book recommendations: ‘Justice’ by Bryan Stevenson, ‘Long Walk to Freedom’ by Nelson Mandela, and ‘Hope in the Dark’ by Rebecca Solnit