I wrote this essay about Amnesty International Victoria in the late 1960’s, mostly during the Bar vacation of 1969-1970. It was completed at weekends in the following year before I left the Bar in July 1970. I left to work on constitutional and legal matters in the decolonisation of Papua New Guinea. I became very fully occupied and so the essay was put away unread but not forgotten. Reading it again after 35 years has been a somewhat strange experience – so much has changed, so much is the same, is a rather banal but nonetheless true reaction.
Such interest as the work now has is historical. It relates to the formative years of Amnesty International in this country and in the United Kingdom where it was born. But it also has interest as a description of the international human rights movement at that time.
I had been very active in the Victorian section of Amnesty International since its formation in 1962. In those years the Section comprised small groups which met monthly to write letters on behalf of prisoners of conscience which we received from the secretariat in London. Each group had three prisoners chosen from communist, non-communist and third world countries in order to preserve the impartiality of the movement. I recall that our first three prisoners were an East German, Gunther Kemnitz (recall that the Berlin Wall was erected in 1962, the same year as the Section was formed); a South African, Jeremiah Moraka who had been exiled under the apartheid laws and a Greek, Constantine Balbakakis, a member of the Left Wing group ELAS.
Amnesty International was formed in London in 1961. Peter Benenson, a London lawyer, reading his newspaper on his way to work on the Underground in late 1960, read of two Portugese students who had been arrested and imprisoned for 7 years for giving a toast to freedom in a Lisbon café. Outraged, he approached his friend David Astor, proprietor of the Observer, who published an article on the 28th May 1961 by Benenson entitled ‘The Forgotten Prisoners’ . Within days The Observer was flooded with offers of support and a large amount of money. The article was reprinted in newspapers throughout Europe and America and led directly to the formation of the body.
I have set out a copy of the article at the end of this preface.
In the Paper I aimed to describe the organization and the operation of the body with which I had been actively engaged for eight years. But the impelling motive was to work out certain problems in my own mind concerning its human rights objectives and activities. This led me to attempt something more comprehensive.
One particular difficulty which might puzzle a modern reader familiar with Amnesty today, is the question whether Amnesty should be regarded as a ‘political’ or a ‘humanitarian’ body. That it was ‘political’ in some degree was clear enough. It acted for political prisoners. And yet its focus then was almost entirely on individuals not on promoting in any political way the principles of human rights. Our work was almost exclusively in writing on behalf of prisoners to seek their release, writing to them to keep up their spirits or, as in the case of our group, sending money to the family of a prisoner, such as Caroline Motsaeledi, wife of the imprisoned African National Congress leader. Campaigning for human rights was only cautiously allowed in case it should jeopardise Amnesty’s impartiality.
This issue cannot really be understood without recognizing the undeveloped state of international rights at that time. Do not misunderstand me. The idea itself as a moral value was almost universally accepted -- espoused if not practised. The Universal Declaration of Human Rights adopted by the General Assembly on the 10th December 1948 was indeed a ‘universal declaration’ or almost, spelling out the ‘rights’ to which the world purported to subscribe. This happened during a rare few years before the Cold War set in and when the idealism of the Atlantic Charter was still a powerful influence. With the Nuremberg Principles 1944-1946, the Genocide Convention 1948 and the Red Cross Geneva Conventions of 1949, the world established a framework of international law in this area.
For the next forty years the Cold War dominated our lives and it is true, as Geoffrey Robertson observes in his Crimes against Humanity, that human rights were often jettisoned, at least when they were diplomatically inconvenient. But his cynicism is overstated. One of the signal achievements during this period was the completion of international instruments which gave legal effect to the principles embodied in the Universal Declaration. The International Covenant on Civil and Political Rights and the International Covenant on Economic and Social Rights were major achievements and together with the other human rights instruments became the fulcrum for dissentients everywhere, particularly those in the Soviet Union and in apartheid South Africa.
The two International Covenants were completed in 1966 but did not come into force until 1976.In 1970, the period in which I wrote, these were still inchoate. Later they became the basis for Amnesty International’s promotional activity. Indeed it was the pre-eminent mover in securing international agreement for the preparation and implementation of the Convention against Torture. But that was later.
I have set this out by way of background. Work for prisoners of conscience remains Amnesty International’s core activity but, in recent years, perhaps necessarily, this has been overshadowed by its promotional work for human rights in a difficult world. I have not attempted to describe the human rights world post-1970. That is another story. The few remarks in this preface are intended only to help in understanding some of the discussion in the Paper.
This is the article, published on the front page of
the Observer Week-End Review on Sunday,28th May 1961, which provoked
telegrams and letters of encouragement—and offers of support – from all over
This is the article, published on the front page of the Observer Week-End Review on Sunday,28th May 1961, which provoked telegrams and letters of encouragement—and offers of support – from all over the world.
Open your newspaper any day of the week and you will find a report from somewhere in the world of someone being imprisoned, tortured or executed because his opinions or religion are unacceptable to his government. There are several million such people in prison—by no means all of them being the Iron and Bamboo Curtains—and their numbers are growing. The newspaper reader feels a sickening sense of impotence. Yet if these feelings of disgust all over the world could be united into common action, something effective could be done.
In 1945 the founder members of the United Nations approved the Universal Declaration of Human Rights:–
Article 18.—Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom either alone or in company with others in public or private, to manifest his religion or belief in teaching practice, worship and observance.
Article 19.—Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
There is at present no sure way of finding out how many countries permit their citizens to enjoy those two fundamental freedoms. What matters is not the rights that exist on paper in the Constitution, but whether they can be exercised and enforced in practice. No government, for instance, is at greater pains to emphasise its constitutional guarantees than the Spanish, but it fails to apply them.
There is a growing tendency all over the world to disguise the real grounds upon which “non-conformists” are imprisoned. In Spain, students who circulate leaflets calling for the right to hold discussions on current affairs are charged with “military rebellion.” In Hungary, Catholic priests who have tried to keep their choir schools open have been charged in “homosexuality.” These cover-up charged indicate that governments are by no means insensitive to the pressure of outside opinion. And when world opinion is concentrated on one weak spot, it can sometimes succeed in making a government relent. For instance, the Hungarian poet Tibor Dery was recently released after the formation of “TIbor Dery committees” in many countries; and Professor Tierno Galvan and his literary friends were acquitted in Spain this March, after the arrival of some distinguished foreign observers.
London office to gather facts
The important thing is to mobilise public opinion quickly, and widely, before a government is caught up in the vicious spiral caused by its own repression, and is faced with impending civil war. By then the situation will have become too desperate for the government to make concessions. The force of opinion, to be effective, should be broadly based, international, non-sectarian and all-party. Campaigns for favour of freedom brought by one country, or party, against another, often achieve nothing but an intensification of persecution.
That is why we have started Appeal for Amnesty, 1961. The campaign, which opens today, is the result of an initiative by a group of lawyers, writers and publishers in London, who share the underlying conviction expressed by Voltaire: “I detest your views, but am prepared to die for your right to express them.” We have set up an office in London to collect information about the names, numbers and conditions of what we have decided to call “Prisoners of Conscience,” and we define them thus: “Any prisoner who is physically restrained (by imprisonment or otherwise) from expressing (in any form of words or symbols) any opinion which he honestly holds and which does not advocate or condone personal violence.” We also exclude those who have conspired with a foreign government to overthrow their own. Our office will from time to time hold Press conferences to focus attention on Prisoners of Conscience selected impartially from different parts of the world. And it will provide factual information to any group, existing or new, in any part of the world, which decides to join in a special effort in favour of freedom of opinion or religion.
In October a Penguin Special called “Persecution 1961” will be published as part of our Amnesty campaign. In it are stories of nine men and women from different parts of the world, of varying political and religious outlook, who have been suffering imprisonment for expressing their opinions. None of them is a professional politician; all of them are professional people. The opinions which have brought them to prison are the common coinage of argument in free society.
Poet flogged in front of family
One story if of the revolting brutality with which Angola’s leading poet, Agostino Neto, was treated before the present disturbances there broke out. Dr Neto was one of the five African doctors in Angola. His efforts to improve the health services for his fellow Africans were unacceptable to the Portuguese. In June last year the Political Police marched into his house, had him flogged in front of his family and then dragged away. He has since been in prison in the Cape Verde Isles without charge or trial.
From Rumania, we shall print the story of Constantin Noica, the philosopher, who was sentenced to twenty-five years’ imprisonment because, while “rusticated,” his friends and pupils continued to visit him, to listen to his talk on philosophy and literature. The book will also tell of the Spanish lawyer, Antonio Amat, who tried to build a coalition of democratic groups, and has been in prison without trial since November 1958;* and of two white men persecuted by their own race for preaching that the coloured races should have equal rights—Ashton Jones, the sixty-five-year-old minister, who last year was repeatedly beaten-up and three times imprisoned in Louisana and Texas for doing what the Freedom Riders are now doing in Alabama; and Patrick Duncan, the son of a former South African Governor-General, who, after three stays in prison, has just been served with an order forbidding him from attending or addressing any meeting for five years.
‘Find out who is in gaol’
The technique of publicising the personal stories of a number of prisoners of contrasting politics is a new one. It has been adopted to avoid the fate of previous amnesty campaigns which so often have become more concerned with publicising the political views of the imprisoned than with humanitarian purposes.
How can we discover the state of freedom in the world today? The American philosopher, John Dewey, once said, “If you want to establish some conception of a society, go find out how is in gaol.” This is hard advice to follow, because there are few governments which welcome inquiries about the number of Prisoners of Conscience they hold in prison. But another test of freedom one can apply is whether the Press is allowed to criticise the government. Even many democratic governments are surprisingly sensitive to Press criticism. In France, General de Gaulle has intensified newspaper seizures, a policy he inherited from the Fourth Republic. In Britain and the United States occasional attempts are made to draw the string of Press criticism by the technique of taking editors into confidence about a “security secret,” as in the Blake spy case.
Within the British Commonwealth, the Government of Ceylon has launched an attack on the Press, and is threatening to take the whole industry under public control. In Pakistan the Press is at the mercy of the Martial Law administration. In Ghana, the opposition Press operates under great disabilities. In South Africa, which leaves the Commonwealth on Wednesday, the government is planning further legislation to censor publications. Outside the Commonwealth, Press freedom is especially in peril in Indonesia, the Arab world, and Latin American countries such as Cuba. In the Communist world, and in Spain and Portugal, Press criticism of the Government is rarely tolerated.
Churchill’s dictum on democracy
Another test of freedom is whether the government permits a political opposition. The post-war years have seen the spread of “personal regimes” across Asia and Africa. Wherever an opposition party is prevented from putting up candidates, or from verifying the election results, much more than its own future is at stake. Multi-party elections may be cumbrous in practice, and the risk of coalitions makes for unstable government; but no other way has yet been found to guarantee freedom to minorities or safety to non-conformists. Whatever truth there may be in the old remark that democracy does not fit well with emergent nationalism, we should also remember Winston Churchill’s dictum: “Democracy is a damned bad system of government, but nobody has thought of a better.”
A fourth test of freedom is, whether those accused of offences against the State receive a speedy and public trial before an impartial court; whether they are allowed to call witnesses, and whether their lawyer is able to present the defence in the way he things best In recent years there has been a regrettable trend in some of those countries that take pride in possessing an independent judiciary: by declaring a state of emergency and taking their opponents into “preventive detention,” governments have side-stepped the need to make and prove criminal charges. At the other extreme there is the enthusiasm in Soviet countries to set up institutions which, though called courts, are really nothing of the sort. The so-called “comradely courts” in the U.S.S.R., which have power to deal with “parasites,” are in essence little more than departments of the Ministry of Labour, shifting “square pegs” into empty holes in Siberia. In China the transmigration of labour by an allegedly judicial process is on a gigantic scale.
The most rapid way of bringing relief to Prisoners of Conscience is publicity, especially publicity among their fellow-citizens. With the pressure of emergent nationalism and the tensions of the Cold War, there are bound to be situations where governments are led to take emergency measures to protect their existence. It is vital that public opinion should insist that these measures should not be excessive, nor prolonged after the moment of danger. If the emergency is to last a long time, then a government should be induced to allow its opponents out of prison, to seek asylum abroad.
Frontier control more efficient
Although there are no statistics, it is likely that recent years have seen a steady decrease in the number of people reaching asylum. This is not so much due to the unwillingness of other countries to offer shelter, as to the greatly increased efficiency of frontier control, which today makes it harder for people to get away. Attempts to reach agreement on a workable international convention on asylum at United Nations have dragged on for many years with little result.
There is also the problem of labour restrictions on immigrants in many countries. So long as work is not available in “host” countries, the right of asylum is largely empty. Appeal for Amnesty, 1961, aims to help towards providing suitable employment for political and religious refugees. It would be good if in each “host” country a central employment office for these people could be set up with the co-operation of the employers’ federations, the trade unions and the Ministry of Labour.
In Britain there are many firms willing to give out translation and correspondence work to refugees, but no machinery to link supply with demand. Those regimes that refuse to allow their nationals to seek asylum on the ground that they go abroad only to conspire, might be less reluctant if they knew that, on arrival, the refugees would not be kicking their heels in idle frustration.
The members of the Council of Europe have agreed a Convention of Human Rights, and set up a commission to secure its enforcement. Some countries have accorded to their citizens the right to approach the commission individually. But some, including Britain, have refused to accept the jurisdiction of the commission over individual complaints, and France has refused to ratify the Convention at all. Public opinion should insist on the establishment of effective supra-national machinery not only in Europe but on similar lines in other continents.
This is an especially suitable for an Amnesty Campaign. It is the centenary of President Lincoln’s inauguration, and of the beginning of the Civil War which ended with the liberation of the American slaves; it is also the centenary of the decree that emancipated the Russian serfs. A hundred years ago Mr Gladstone’s budget swept away the oppressive duties on newsprint and so enlarged the range of freedom of the Press; 1961 marked the end of the tyranny of King “Bomba” of Naples, and the creation of a united Italy; it was also the year of the death of Lacordaire, the French Dominican opponent of Bourbon and Orleanist oppression.
The success of the 1961 Amnesty Campaign depends on how sharply and powerfully it is possible to rally public opinion. It depends, too, upon the campaign being all-embracing in its composition, international in charter and politically impartial in direction. Any group is welcome to take part which is prepared to condemn persecution regardless of where it occurs, who is responsible or what are the ideas suppressed. How much can be achieved when men and women of good will unite was shown on World Refugee Year. Inevitably most of the action called for by Appeal for Amnesty, 1961, can only be taken by governments. But experience shows that in matters such as these governments are prepared to follow only where public opinion leads. Pressure of opinion a hundred years ago brought about the emancipation of the slaves. It is now for man to insist on the same freedom for his mind as he won for his body.
“… there is no area of the world where people are not suffering for their beliefs and no ideology which is blameless.”
Peter Benenson - ‘Persecution 1961’.
Shortly before the first world war, the historian, J.B. Bury wrote that “at present in the most civilized countries, freedom of speech is taken as a matter of course. We are so accustomed to it that we look upon it as a natural right”. There was much to justify Bury’s comment. The notion that the State was morally bound to concede to the individual the right to express his political beliefs had been recognised by many of the nation States of Europe and the Americas. The English constitutional struggles, American Independence and the French Revolution seemed distant affairs.
Thus an intelligent observer in 1900 might well have predicted, somewhat dogmatically, a century of increasing political freedom and the near extinction, in Europe at all events, of political imprisonment. It is true that the first concentration camps had only just been established - during the Boer War. But few would have thought of them becoming a twentieth century symbol.
It is unnecessary to labour the contradiction between expectation and fact. In 1937/8 alone there were 7-8 million detained in Stalin’s camps - a figure which is credible only by virtue of Robert Conquest’s painstaking documentation. At present thousands of political prisoners are held in Spain, Portugal, Yugoslavia, Russia, Romania, Hungary, Poland, South Africa, Rhodesia, Guinea, Kenya, Uganda, Tanzania, Chile, Cuba, the Argentine, Bolivia, Brazil - and the list is incomplete.
Nevertheless the prediction of political tolerance supposed above has in part proved valid. The paradox is that imprisonment for political belief has reached immense proportions at a time when much of mankind has become acutely sensitive to its evil. The 1948 Universal Declaration of Human Rights is not legally binding but unquestionably represents a statement of goals and an acknowledgement of principles. It is not to be dismissed merely because it is so freely disregarded by those subscribing to it. Propaganda-conscious governments feel compelled to conceal from the world their political prisoners. The Soviet Union locks up Valeri Tarsis in a “mental asylum”. South Africa plays free with semantics and arrests “Communists” for “Sabotage”. There is a kind of schizoid element in twentieth century governments which require them to acknowledge an obligation to political tolerance even whilst disregarding it in practice.
The explanation for this is that the protection of human rights has today become a matter for international and not merely domestic concern. Hilary Cartwright in a recent essay has written of this very real change in attitude. “While there was some international action in the human rights field before the second world war - for example in the abolition of slavery and the slave trade, for the protection of the individual in war time, for the protection of the religious or national minorities which came into existence as a result of the re-drawing of the boundaries of Europe after the first world war, and for the protection of refugees - it is only since 1945 that human rights generally have been recognized as a matter of international concern and co-ordinated and planned action has been undertaken with a view to providing international protection.”
There are two views about the role that international organs can play in the human rights field. The first, the traditional and conservative view, is that human rights are essentially an internal, domestic matter and that international activity should be confined to encouraging and assisting states to provide effective protection of human rights at the national level. The second view, which in the last twenty years has been gaining greater acceptance, is that human rights are essentially a matter of international concern and that in the world as it is today their effective protection cannot be safely left to individual governments: some form of international protection and control is therefore essential.
Many if not most of the international institutions concerned with human rights belong to the United Nations. Their establishment and current performance reveals halting but definite progress. It was the Human Rights Commission, consisting of 32 members and functioning under the aegis of the Economic and Social Council, which prepared the Universal Declaration. This was adopted by the General Assembly on the 10th December 1948 without a dissenting vote although there were eight abstentions - Albania, Bulgaria, Czechoslovakia, Hungary, Poland, Romania, South Africa and the U.S.S.R. Subsequently in December 1966 the International Covenant on Civil and Political Rights was adopted. It has not as yet been ratified by the required number of States to become binding. Article 19 provides that “Everyone shall have the right to hold opinions without interference” and “Everyone shall have the right of freedom of expression”.
Slowly the States are yielding their sovereignty to international supervision on the subject of human rights. The European Convention for the Protection of Human Rights has now been ratified by sixteen of the eighteen members of the Council of Europe. By that Convention two organs are established - the European Commission of Human Rights and the European Court of Human Rights. Both are viable and functioning. Petitions may be lodged with the Commission by individuals by complaining of alleged violations of human rights by government. There have in fact been over 3000 applications received from individuals. In the first instance the Commission reports on whether the facts disclose a breach of the Convention. The matter may however be referred to the Court.
These are new institutions. The Declaration and the International Covenant reflect the changing philosophy and the acceptance of the view that the denial of human rights is no longer merely a matter of national interest.
Amnesty International was not established by the United Nations although it has been granted consultative status by it. It is a voluntary association. It is however based on this relatively new notion that a breach of human rights is a matter of universal concern. The movement acts through individuals and has assumed from its inception that there are many people throughout the world who think of human rights, and in particular their breach by political imprisonment, in this way. Indeed it is a feature of the organization that action on behalf of political prisoners can be undertaken only by members who live outside the country in question.
Amnesty International was founded by an English lawyer, Peter Benenson. In May 1961 he wrote an article entitled “The Forgotten Prisoners” in the Observer. He urged a campaign concentrated on individual “Prisoners of Conscience” and pointed to the fate of previous Amnesty campaigns which had so often become more concerned with publicising the political views of the imprisoned than with humanitarian purposes.
Benenson suggested that Governments were by no means insensitive to the pressure of outside opinion and that world opinion, if concentrated on one weak spot, could sometimes succeed in making a Government relent. However, if the force of opinion were to be effective it had in his view to be broadly based - international, non-sectarian and comprehending all parties. He suggested that campaigns in favour of freedom brought by one country or party against another often achieved nothing but an intensification of the persecution.
There was an extraordinary response to this article and by July 1961 the first International Assembly of Amnesty International was held in Luxembourg with seven countries represented. Today, Amnesty has sections working in twenty-one countries with seven hundred local groups working for the release of “Prisoners of Conscience”.
The organisation is totally independent of any political or other ties except for its affiliation with the Economic and Social Council of the United Nations and the Council of Europe. It is governed by an international assembly, and on an executive level, by an international council. A Secretary General is responsible for the operation of a permanent secretariat in London.
Amnesty seeks to mobilise world opinion in aid of what it describes as “Prisoners of Conscience”. These prisoners are defined as follows:
“… Persons who in violation of the aforesaid provisions (i.e. articles 5, 9, 18 and 19) of the U.N. Declaration of Human Rights are imprisoned, detained or restricted or otherwise subjected to physical coercion or restraint by reason of their political, religious or other conscientiously held belief or by reason of their ethnic origin, colour or language provided that they have not used or advocated violence”.
In effect Articles 18 and 19 of the U.N. Declaration assert the right of everyone to freedom of thought, conscience and religion and the right to freedom of opinion and expression. Article 5 declares that no one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment in Article 9 declares that no one shall be subjected to arbitrary arrest detention or exile.
Publicity on behalf of these prisoners is especially valuable, and this is largely the responsibility of the central body. What surprises most people about political imprisonment is not its existence but its extent. This has been so because of the comparative success Governments have had in concealing the numbers and identity of those detained. The organization has had considerable success in selecting one, or in recent years, three prime prisoners upon which it seeks to concentrate international attention. As if to vindicate Benenson’s thesis as to the sensitivity of Governments to international opinion, a remarkable number of these highly publicised prisoners have been released - Heinz Brandt (G.D.R.), Ghaffar Abdul Khan (Pakistan), Koumendien Keita (Guinea), among others.
A vital function carried out by the central body is the official missions which have been carried ever since the inception of the movement. The following is an incomplete list:-
Cuba: To observe a political trial. Report published by Amnesty shows how five accused, denied proper defence rights, were tried, sentenced and executed in one day.
Czechoslovakia: To discuss the cases of Archbishop Beran and others. Shortly afterwards the Archbishop was released.
Ghana: Visit followed by publication of report on arbitrary arrest by the Nkrumah Government.
Portugal: Report on discussions with Cardinal Gerejeira about prisoners exiled to overseas provinces and meeting with families of other prisoners.
France: Report on the trial of Pere Davezies accused of collaborating with Algerian FLN in France.
Yugoslavia: Report on mission to intercede for Djilas.
East Germany: Report on mission to intercede for “Prisoners of Conscience”.
Lebanon: Mission following reports of ill-treatment of members of the P.P.S. following an unsuccessful coup. Treatment appears to have improved after mission.
Northern Rhodesia (now Zimbabwe): Enquiry into the needs of political refugees, mostly African, coming form South Africa results in project successfully carried out in collaboration with other organisations.
Iraq: Visit by British M.P. to political detainees.
Morocco: Report on the trial of opposition leaders.
Missions to Spain, East Germany, Rumania, Portugal, Rwanda and the U.S.A.: Reports on these missions remained confidential.
Greece: Mission to establish whether detainees were “Prisoners of Conscience” or spies as alleged by Greek Government. Subsequently adoption of most cases was recommended.
Cuba: Mission to attend trial.
Iran: Four missions in connection with the trial of students and others for alleged complicity in an attempt to assassinate the Shah. Amnesty representations and publicity about the treatment of the accused helped to secure several acquittals and the commutation of death sentences.
Portugal: Two missions in connection with the arrest and trial of students. Report published.
Southern Rhodesia: Mission to set up relief programme for restrictees and their families and collect background information for report on prison conditions.
Malawi: Report to the Executive Committee.
Germany: Three missions in preparation for the East German prison report which was published.
Hungary: Two missions to establish contact with the hitherto silent authorities and with various semi-official organisations.
Greece: Three missions to investigate the cases of the small number of remaining detainees (the majority having been released partly as a result of Amnesty pressure) and discussion with authorities after attendance at trial of Trade Unionists.
Aden: After discussions with British Ministers about conditions of detention and a refusal by the British Government to publish reports by the representative of the International Red Cross, Amnesty sent an official observer whose report they subsequently published. Widespread publicity obliged the British Government to send their own observer whose report drew attention to serious irregularities.
Portugal: Attendance at trial of two alleged Communists. A campaign on behalf of one of them was followed by his release.
Spain: Attendance at a trial.
Czechoslovakia: Attendance at a trial.
Turkey: Report to the Executive Committee.
Greece: Two important and much publicised reports presented to the Council of Europe following three visits in 1967 and 1968.
U.S.S.R.: Mission to trial of four writers accused of anti-Soviet propaganda.
Tunisia: To observe a trial and report to the Secretariat. To discuss with Government, release of prisoners and their conditions.
West Africa: To investigate conditions in Sierra Leone and Ghana and hold discussions with Government.
Malawi: To observe appeal hearings of persons under death sentence and to present Amnesty report on detentions to government.
Iran: To observe the trial of intellectuals and have discussion with Government. Report still confidential.
Greece: Observe trial which was then postponed. Further information obtained. Report confidential.
East and Central Africa: Discussion on possible setting up in Somalia and Sudan of Amnesty National section and release of prisoners in Tanzania, Kenya, Uganda, Report made to International Executive Committee.
Middle East: Separate visits to Jordan, Lebanon, Israel and Iraq. Reports still confidential.
Spain: To observe trial and obtain information on torture.
Nevertheless, when everything has been said as to the work carried out directly by the central body, it remains true that the distinctive feature of Amnesty’s work is that carried out by the seven hundred local groups previously mentioned. By monitoring the International Press and by sifting information received from a variety of sources the International Secretariat in London catalogues hundreds of arrests. The Secretariat then researchers further into the individual cases and if satisfied that the prisoner is a “prisoner of conscience” a case history will be prepared setting out information about the prisoner and the circumstances which led to his arrest. He is then assigned to a local group; but a group outside the prisoner’s own country. It should be added that where the Secretariat is not satisfied that a prisoner does come within the definition of a “prisoner of conscience” he may be referred to a group for further investigation.
The usual local group will consist of say ten members who will be currently working for the release of these “prisoners of conscience”. Ideally each group should have three prisoners, one from the Communist bloc, one from the western bloc and one from the neutral or “third world” bloc. Although arbitrary and sometimes anomalous this division is successful in preventing ideological bias in the work of the groups and commits them, both ostensibly and factually, to a neutral stance.
The group proceeds to apply pressure for the release of its prisoner by approaches to Ministers or other officials of the Government concerned, influential persons or organisations located there, liaison with private contracts, letters to local embassies and so forth. Their work is not confined simply to securing releases. In many instances the primary aim is to provide moral support to the prisoner or material help for his family. In semi-open societies such as Southern Africa, it is possible to establish contact with the prisoner himself through his family. In other cases the group send money regularly to the prisoner’s family.
In June 1965 Amnesty introduced a new plan for non-group members who are given the names and addresses of certain prisoners and are to send cards monthly to them.
It will be seen that there is one point of critical importance in the functioning of the movement. It acts only for individuals. It does not campaign against governments and, perhaps illogically but pragmatically, does not direct its efforts to the removal of the law under which the prisoner is detained. It thus minimises, although it does not avoid, the charge of political motivation; it can thus claim to speak with some sort of objectivity. There is an additional advantage. It enables the movement to be active and not merely vocal. The grounds upon which people object to political or religious imprisonment may differ greatly, but if they are working collectively for the release of a particular person, their precise and possibly conflicting motivations do not impair action. The source of this action becomes diverted from the political to the primarily humanitarian.
And yet there can be no doubt that the movement’s ultimate ground for intervention must be derived from political principles. The organisation works for the release of “political” prisoners. It thus assumes that such a prisoner has been wrongfully detained even though his detention may be in conformity with the domestic law. The ultimate justification for action cannot be the personality of the particular prisoner and indeed a moments reflection brings home the reality that political prisoners, as individuals, have included some rather grubby characters. Stalin in Batum as well as Ghandi in Yeravda, Hitler in Landsberg as well as his victim, Bonhoeffer, were political prisoners although, it is true, fortuitously not “prisoners of conscience”. The truth is, as Shaw somewhere remarked, that the revolutionary includes both those who are not good enough as well as those who are too good for established institutions. The movement’s ultimate justification thus depends neither on the personality of the prisoner nor upon the ideology which he his advocating but upon the proposition that the State in detaining him is infringing certain ultimate principles. These principles are set out in general terms in Articles 5, 9, 18 and 19 of the Universal Declaration of Human Rights.
As stated, a close distinction between the humanitarian endeavour and the attempt to induce governments to implement the principles of the Universal Declaration is not required for a day to day Amnesty action. Nevertheless there are dangers if the separate nature of the objectives is lost sight of. It is important that governments do not assume that Amnesty is simply humanitarian. It is also important that they do not confuse its activity with political support on behalf of the views advocated by the particular detainee.
The Victorian Section: The object of this and the following part is to give some idea of the development of an Amnesty Section and to illustrate how an Amnesty Group works.
What follows, is a somewhat bare summary of the Section’s activities.
The Victorian Section of Amnesty International was formed in March 1962. The central office in London had sent the names of three prisoners to the initial meeting. A Greek, Constantinos Balbakakis, who had formerly been a member of E.L.A.S.; an East German, Gunther Kemnitz who had been arrested by the M.V.D. on the 19th June 1952 and had apparently been taken to the Soviet Union and Jeremiah Moraka, an African who was a member of the Matala tribe, and who had been compulsorily removed under South Africa’s banishment legislation from his home in the Transvaal after objecting to a government sponsored Chief.
The Section divided into three groups with each assuming responsibility for one of these prisoners. During the first year the Section was given two additional prisoners. The first was Natalia David, a Portuguese who had been arrested and charged with Communist activities. The Section received a letter from her parents in November 1962 and was able to arrange at short notice for an observer from London to attend her trial in Lisbon a few days later. The other early prisoner was a Catholic Bishop, Bishop Walsh, detained in Communist China.
In the following year groups were formed at Caulfield, Sassafras and Glen Iris. The work became less spasmodic as groups arranged to meet monthly and report regularly on their activities. In addition groups experimented working with groups overseas for the release of prisoners of the same nationality.
In 1965 there were ten groups operating; working for twenty-one adopted prisoners. In the following year the total number of prisoners for whom the group was then working was thirty-six. At the same time a Card Scheme was introduced for those members who did not wish to belong to groups. Each month a newssheet is sent to the member giving the names and case histories of three prisoners and the action which should be taken on behalf of these prisoners and the names of authorities to whom appeals should be addressed. Christmas cards were published under the auspices of the section. These cards were not for conventional distribution but were to be sent to prisoners. The purchaser of cards received a list of prisoners (with addresses) to whom the cards could be sent. In 1966 four thousand Christmas cards were sold.
In 1967 there were thirteen groups functioning in Victoria and during the year they had worked for seventy prisoners of whom eighteen were released. There were twenty-five members who had adopted the monthly card scheme. By 1968 an additional group had been formed. There were two groups operating at the Melbourne University which to a degree had autonomy separate from the Section. The University groups published a regular bulletin relating to political imprisonment.
In 1969 the Section had a financial membership of about two hundred and groups were working for fifty-eight prisoners.
Group Work - Mihajlo Mihajlov: The particular group which worked for the Yugoslav political prisoner, Mihajlo Mihajlov, comprised eight to ten people. The group met monthly to discuss the case and to determine upon action. It was, throughout the period it was working for Mihajlov also seeking to help other political prisoners. These included a Spanish conscientious objector, imprisoned for the second time; a Pakistani detained for asserting separatist rights in East Pakistan; an opposition member detained by the Government of Singapore; two Ugandans, since released, political opponents of Dr Milton Obote; the former Algerian leader Ahmed Ben Bella; and a Rhodesian restrictee. The group has since 1964 sent a regular monthly financial allowance to the family of a Rivonia Trialist and has more spasmodically assisted the family of a Rhodesian restrictee.
Mihajlov has been chosen as an illustration because the work carried out was typical and not because the results achieved were in any way spectacular. It should be emphasised that the results were, if anything, atypical in the relative lack of response. Indeed a summary of what was done for Marin Paz, the Spanish conscientious objector referred to, would have included letters from the prisoner himself, his family and from Spanish government officials.
The summary of work in relation to Mihajlov should however enable an assessment to be formed as to how a group goes about its work and the effect of its collective efforts. In this latter connection there are several matters to be borne in mind. In the case of Mihajlov the Australian group was not alone in acting for him. Throughout this period the American Section were working for his release or the improvements in his conditions. Secondly, it should not be supposed that the failure of governments to reply to group representations necessarily indicates a negative response. The same group had worked for Jan Stefanides, the Yugoslav Nazarene. No reply was received from President Tito to the group's letter but it seems almost certain that it greatly influenced Stefanides’ release. He was almost told that this was so by the releasing officials.
Mihajlov is almost the classical political prisoner as it can hardly be suggested that he was being held for reasons other than this unfavourable beliefs and because of his declared intention to take part in the formation of a party in opposition to the League of Communists. He is thirty-six years of age and was prior to his dismissal a lecturer in Slavonic literature at Zagreb University with a reputation as a Dostoevsky scholar. His father was a White Russian army officer who came to Yugoslavia after the 1917 revolution.
In 1964 Mihajlov visited the Soviet Union and early in the following year he wrote a three-part article about his visit for the Yugoslav Literary Journal, Delo. The article appeared under the title "Moscow Summer 1964". In the first part Mihajlov described the Soviet literary scene and meeting with well known writers such as Ilya Ehrenburg.
It was the second part of his article which brought Mihajlov into collision with the authorities. In it he discussed the current preoccupation of Soviet writers with labour camps and quoted Leonid Leonov who had remarked that "people will be writing about Soviet concentration camps for the next eighty years". Mihajlov's articles went on to describe some of the main books to appear dealing with the theme - even by 1963 10,000 manuscripts had been submitted to literary magazines relating to it - and Mihajlov proceeded to offer his own opinion that Russians were writing "less and less about Fascist and Nazi camps to avoid any comparison with Soviet camps". He added that this was quite understandable as "the first death camps were not founded by the Germans, but by the Soviet. In 1921, near Arkhangjelsk, they set up Kholmogor camps for the sole purpose of exterminating the prisoners".
Reaction to this part of the article was immediate. The Soviet Ambassador protested to the Yugoslav government. President Tito rebuked a delegation of public prosecutors for allowing an article with such "Djilasist" tendencies to appear. The final part of "Moscow Summer" was banned. Mihajlov was arrested and charged with "damaging the reputation of a foreign state" (the U.S.S.R.) and sending the third-part of "Moscow Summer" to an Italian publisher after it had been banned. He was found guilty on both counts, was sentenced to ten months imprisonment which however was reduced to five months and suspended, on appeal.
In July 1966 Mihajlov announced the establishment of an opposition magazine “Free Voice”. In an open letter to President Tito, Mihajlov explained that this would be a periodical of a "philosophical and political, social and cultural nature intended to become … the nucleus of a democratic and socialist social-political movement under the constitution of Yugoslavia. Obviously I need not remind you that Articles 39 and 40 of the New Yugoslav Constitution explicitly guarantee to all citizens … the freedom of thought, opinion, expression and assembly".
The periodical was to have been launched at a meeting at Zadar, in mid-August, but at the end of July 1966 Mihajlov was arrested and charged with spreading false information through articles published abroad and of inciting the Yugoslav people. On the 23rd September 1966 he was found guilty and sentenced to one year's imprisonment. He began his prison sentence in Sremska Mitrovica prison but on the 17th April 1967 he was brought to trial again, charged with spreading false propaganda and was sentence for four and a half years imprisonment. In October 1967 this was reduced to three and a half years; the term commenced form when he was originally imprisoned.
The Group received Mihajlov's case history from London in March 1967. That case history reads as follows:
NAME: Mihajlo MIHAJLOV Country: Yugoslavia
Age: 33 years
Profession: University Lecturer in Slavonic Studies till 1965 when he was dismissed from his post at Zagreb University on grounds of moral unfitness.
Detained: Sremska Mitrovica, Kazneni Popravna Dom (K.P.D.) Belgrade.
Arrested: 8th August 1966 at Zadar.
Date and place of trial: 23rd September 1966 at Zadar.
Charges: Charged with disseminating false information about Yugoslavia.
Sentenced: Sentenced to nine months on this charge plus three months on earlier suspended sentence.
Appeal: Rejected 5th November 1966.
Health: Reported good.
Family: Unmarried. Sister Marie and she can be contacted and written freely c/o the American Section.
Language: German or English to the authorities.
English for Mihajlov and his sister.
If you can write in Serbo/Croat to the authorities it is much better.
Comments: Letters can be written to Mihajlov and his sister through the American Section.
Letters to authorities should be sent to The Minister of Justice (Federal) Milorad Zoric, Savenzni Zekretarijat Ze Pravosvdje, BELGRADE. 55. Yugoslavia.
Work in co-ordination with the American Section.
At about this time Mihajlov was again placed on trial which resulted in his four and a half year sentence on 19th April 1967.
It was of course perfectly plain to the group that, having regard to Mihajlov's recent sentence and his importance as a political prisoner, any request for an immediate release was pointless. They wrote in the first place to Mihajlov himself who was at this time in Sremska Mitrovica prison and to the Yugoslav Embassy, in Australia, seeking information as to how a copy of the judgment of the Court might be obtained. The idea, in writing for a copy of the judgment was to enable the group to get into some kind of exchange with the Yugoslav authorities on the constitutionality of the conviction. The express provisions of the new Yugoslav constitution were in conflict with the offence with which Mihajlov had been charged and it was thought that a reminder of the inconsistency was likely to prove the most effective start.
By July 1967, at its next meeting, the group considered whether a special approach should be made having regard to the nearness of the fiftieth anniversary of the October Revolution. A formal letter was written on Amnesty's behalf to the Yugoslav Minister for Justice in Belgrade. The particular reason for this letter was to protest at Mihajlov having recently been placed in solitary confinement. As Mihajlov's name had appeared in the Australian press it was possible for members to write to Yugoslav authorities in their own name. The group wrote to the Court in Zagreb in July for information as to how the judgment could be obtained. In August 1967 the group was informed that Mihajlov was no longer in solitary confinement and a letter was written to the Minister for Justice congratulating the authorities on this improvement in Mihajlov's conditions. Several members had received replies from the Yugoslav Embassy and it was arranged that letters would be sent to the Supreme Court in accordance with the address given by the Embassy. In October 1967, with the approach of the fiftieth Anniversary of the 1917 revolution, a letter was written to President Tito seeking the premature release of Mihajlov in view of the occasion. Endeavours were made at this time to secure publicity to local papers. Shortly prior to November 1967 the group had learnt of the reduction in Mihajlov's sentence by twelve months. Some success had been achieved in securing publicity for Mihajlov in local papers.
In December 1967 London informed the group that Mihajlov had been removed from Belgrade to Pozarevac Prison and because of his treatment there had gone on a hunger strike. The group resolved that a cable be sent immediately to the Minister for Justice in Belgrade and that this be followed by a letter to the Embassy. By early January 1968 the conditions of Mihajlov's detention had improved and by the 30th January he was allowed to study and write and was no longer expected to do manual labour. A post card was sent to Mihajlov. A letter was written to the Prison Governor at Pozarevac expressing concern but noting with satisfaction that the improvement in conditions and a series of letters at agreed intervals were sent to the Court in Belgrade at the address given to the group by the Yugoslav Embassy in Australia. No replies were received and in April 1968 a further letter was sent to the Embassy complaining of the failure of the Court to answer letters sent to the address which the Embassy had given. On the 27th February 1968 Mihajlov's father died. The American group advised that it had written to President Tito in relation to this. The Australian group sent a letter of sympathy to Mihajlov. In the meantime the Yugoslav Embassy had replied giving a different address in Belgrade to which to direct enquiries. A letter, in Yugoslav, was sent to the Minister for Justice in June 1968. At the same time a letter was written to the Consul-General in Australia expressing commendation of President Tito's support of the Dubcek regime in Czechoslovakia. This was followed by a further letter pointing to the consistency between the Czech Action Programme contemplated by Dubcek and the position which Mihajlov had adopted in his open letter to President Tito and a letter was written to the Yugoslav representative at the United Nations in New York seeking his release. This brought no response.
At this stage the group resolved to delay any further action until shortly prior to the 19th April 1969 - that being the anniversary of Mihajlov's sentence. Shortly prior to this date letters were sent to the Embassy, the Minister for Justice, the Court and a cable was sent to President Tito.
In April 1969 a new approach was adopted. It was decided not to make any further requests for Mihajlov's release but rather to seek, on humanitarian grounds for permission to write to him in prison. A letter was sent to the Minister for Justice asking for no more than permission to write to Mihajlov. In July 1969 a letter was written to the Yugoslav Ambassador in the U.S. expressing the hope that he would be released soon. In August 1969 a personal note was written to Mihajlov. It was sent to the Embassy and it was asked to forward it on to him. In November 1969 a book, in Yugoslav, was purchased as a Christmas present. It was the biography of Simone de Beauvoir. It was proposed to forward this to Mihajlov via the Yugoslav Embassy. It was purchased and sent accordingly - double wrapped so that it could be examined by the Consul. In January 1970 the Embassy replied that it had, in accordance with the group's request, sent the book on to the Administrator of Sremska Mitrovica prison where Mihajlov was then detained.
In March 1970 it was announced that Mihajlov had been released.
The Release of Prisoners
Amnesty's first aim is to obtain the release of prisoners of conscience. It seeks to achieve this by the force of international opinion. The immediate question is whether such a movement can have a significant effect upon governments who have felt it necessary to detain their political opponents. Since its inception nearly one thousand five hundred prisoners adopted by Amnesty have been released. This is encouraging but far from conclusive as to the effect of intervention. Governments rarely acknowledge that they are detaining persons merely for their beliefs. A seeming legality is necessary. Even less frequently are they likely to concede that they are releasing those prisoners because of external pressures. The effect of Amnesty intervention, if any, can only be inferred from circumstances. A release shortly following Amnesty representations when the sentence has not nearly expired suggests their effect. Of course the most usual way in which a Group can feel certainty that its work has in some way been responsible for the release of a prisoner is where it has been confirmed by the prisoner himself. Thus a Victorian Amnesty Group receives a letter from a young Spanish political prisoner thanking it for its intervention. In that case he was released years before the end of his sentence. In other instances the prisoner writes. A different group received a letter dated the 8th June 1969 from a prisoner expressing gratitude.
Thanks to your intervention, I arrived in Paris on the 1st May 1969 after 23 months internment in …….. . We owe our freedom and liberty to efforts of your organisation and it is quite impossible to find the words for expressing our gratefulness.”
A more unusual instance in the extent of its verification occurred in the case of the Melbourne Group. It was acting for a young Nazarene detained in Yugoslavia. The Nazarenes are a sect opposed to military service and as a result of their conscientious refusal to serve are imprisoned - held mostly on Goli Otok Island. A member of the group wrote to President Tito with respect to the Nazarene, Jan Stefanides. All that was then known was that Stefanides was released within three weeks, long before the expiration of his sentence. Later Stefanides came to Australia and was interviewed by the group and asked to explain what had occurred. He told how he was called to the prison office and was told that a letter had been received in Belgrade seeking his release. He was asked whether he knew anything about it. He replied that he did not. The following day he was released.
It is difficult to know what effect a mass of letters may have had. What is interesting is that many governments feel constrained to reply to letters written by ordinary individuals in other countries who simply write in the name of Amnesty. The governments of Ghana, Kenya and Tanzania, among African countries, regularly if not invariably reply in courteous terms explaining at least generally the grounds for a prisoner's detention. Some years ago an amusing letter was received by a Victorian Group from the Portuguese Embassy after the group had complained to higher authority that the Embassy was not replying to correspondence. A vehement denial came from the Embassy asserting that it had taken the greatest pains to deal with Amnesty correspondence. Recently a Spanish official in reply to an Amnesty member elaborated upon the legislation in Spain relating to conscientious objectors. These reactions do involve an acknowledgement of an obligation to account for the detention of a prisoner.
It is to be emphasised that many of these letters are not mere courtesy replies. In addition to the instance of the Spanish letter both Rhodesia and South Africa have replied in letters extending over various pages explaining and seeking to justify the banishment of persons in the one instance and the restriction of detainees in the other.
Unquestionably the clearest achievements have been obtained where there has been publicity. This is the great avenue for public opinion. News and pictures of outrages such as those at Sharpeville, the use of napalm bombs in Angola and Vietnam, the massacre at My Lai are flashed almost instantaneously around the world. A newspaper article by Neville Vincent dealing with prison conditions in Portugal led the Portuguese government to invite Lord Russell of Liverpool to examine Portuguese prisons. He refuted Vincent's allegations. This in turn led to a visit by Lord Gardiner, the present Lord Chancellor. The point for present purposes is that the Portuguese government felt it necessary to conciliate world opinion by securing a report from Lord Russel of Liverpool. Of course sensitivity to world opinion varies. It is true that letters from Communist governments (apart from Embassies) are rare. It must not be supposed that Communist governments are on that account unconcerned by the charge of political imprisonment. The Daniel and Sinyavsky trial, unlike so many others, was given considerable publicity in the west. In November 1967 Abnan Chakovsky, the Editor in Chief of the Literary Gazette, came to London to debate with Malcolm Muggeridge in a B.B.C. television studio the sentence imposed upon Soviet writers. What may puzzle us is that the Soviet should have allowed them ever to be put upon public trial. The reaction of Anatoly Marchenko (who was himself in prison at the time of the trial) in “My Testimony” is very interesting:-
“The cons in the camp quarrelled a lot about this trial and also about the two writers themselves. In the beginning, after the first newspaper stories had appeared and before the trial began, everyone agreed unanimously that they were either scum or cowards or maybe provocateurs. After all, it was absolutely unprecedented - an open political trial, an open hearing of a case brought under Article 70. We still did not know that the whole world was talking of their arrest and that this was the only reason the case could not be hushed up. Anyway, these two were bound to weep and recant and to confess that they had taken their orders from abroad, that they had sold themselves for dollars. How many more of their like were already in the camps, and not one of them had been tried in open courts. That meant we were in line for the standard sort of show trial where the accused would play their parts without a murmur.
But then we began to read the first accounts of the trial itself. The accused were not admitting their guilt. No admission of guilt, no pleas for forgiveness - they were even arguing with the Court, standing up for their right to freedom of speech. This was clear even from the accounts in our own press, just as it was equally obvious that our newspapers were distorting the heart of the matter and the course of the trial. This last detail, however, did not bother us: soon we would be hearing it all from the writers themselves. Bravo, Sinyavsky and Daniel;. For the first time the K.G.B. was openly trying someone other than scum - and how they were catching it; but what was the bottom of it? Why an open trial, why were the newspapers writing about it? Some prisoners guessed that the west must have somehow got to hear of it. Oh well we would soon know.
As for the sentences, we guessed those at once, on the very first day: Sinyavsky would get seven years and Daniel five. Say what you like, but we were men of experience. A few predicted prison at Vladamir, but the majority was confident that they would come to us. Everybody, though, agreed unanimously on one thing; whatever the sentence might be, this time the K.G.B. had suffered a crushing defeat. And it wasn't just because the accused had behaved honourably. The main thing was that the whole world would know that the Soviet Union had political prisoners.”
Marchenko was right about the West finding out. The accused were arrested in September 1965. No mention was made in the Soviet Press of their arrests, but the rumour had reached the West and on the 9th October, Giancerlo Vigorelli, Secretary General of the Community of European writers, first raised the question in public, in the presence of the Soviet delegates, at a meeting of the organisation in Rome. It was only on the 22nd November at a press conference in Paris, Surkov admitted that the two writers were in prison; the Soviet people heard nothing of their arrest until the 13th January when a campaign of defamation began.
Publicity is the key. As mentioned previously Amnesty International has had considerable success with its ‘prisoners of the year’. In 1962 and 1963 only one prisoner in each year was adopted. Amnesty sought to mobilise full publicity to the case of this particular prisoner. Ghaffar Khan the “Gandhi of the north-west frontier” had been detained without trial by the Pakistan Government since 1947. Since independence he had been continually suspect and feared by the government for his insistence on Pathan Rights. His party, Khundai Khidmatgar (the servants of God, known as the Red Shirt Movement) was declared illegal. In 1948 he was sentenced to three years rigorous imprisonment but was actually detained in prison until 1954. A brief period of freedom followed, although he was not allowed to return to the north-west frontier. He was tried again in 1956 under Pakistan Criminal Procedure, again imprisoned and later freed, only to be re-arrested in April 1961 under the West Pakistan Maintenance of Public Ordinance. Despite appeals and a review of the case on the 25th November 1962 he was till in gaol when accepted as Amnesty’s prisoner of the year. The press releases and other publicity in 1963 were considerable. Gaffer Khan was released in the year following his adoption by Amnesty as prisoner of the year.
Heinz Brandt was adopted in the following year. Brandt was abducted by the Soviet zone police on the night of 16th - 17th June 1961 when attending a union conference for his paper in West Germany. On the 21st June 1961, the East German Press Agency announced that the “Spy Heinz Brandt” had been arrested and was in the hands of the P.D.A. police. Neither his wife, three children, nor his lawyer, were able to contact him and at the time of his adoption as 1963 prisoner of the year his whereabouts were unknown. On the 10th May 1962, Brandt was sentenced to thirteen years hard labour.
No charges have been published but he was apparently found guilty of spying for the Eastern Affairs Bureau of the West German Social Democratic Party. In fact Brandt was detained because of a disagreement with the totalitarian methods of the East German regime. He had become a member of the Communist Party early in his life. He was tortured by the S.A. in 1933 for “illegal activities” against the Nazi regime. In 1935 he was sentenced to five years imprisonment, and from 1940-1945 he was interned at the death camps of Sachsenhausen, Auschwitz and Buchenwald. After the war he became Secretary of the Berlin Branch of the Communist Party but was horrified by the repression which followed the workers revolt in East Germany in 1953 and in Budapest in 1956. He fled to West Germany in 1958. Heinz Brandt was released during 1964 after considerable European publicity on the part of Amnesty and representations to the East German Government to secure his release. On the 10th December 1964 - Human Rights Day - he attended an Amnesty ceremony in London.
Dr Julieta Gandra, Amnesty’s 1964 prisoner of the year, a Portuguese prisoner held for political reasons by her government was also released during that year. Koumandian Keita, another prisoner of the year, who had played a leading part in Guinean political movements both before and after independence, had been arrested in November 1961. The next morning the central committee of the Guinean Ruling Party (P.D.G.) decided that Keita and other officers of the Teachers Union should be arraigned before a specially constituted High Court composed not of judges but of deputies and other politicians. This Court sat in secret session during the night of the 18th - 19th November and sentenced Keita to two years suspended sentence. The central committee of the P.D.G decided the sentence was not sufficient and the Court was reconvened and sentenced Keita to ten years imprisonment. Thereafter Keita was held in the notorious internment camp at Alfa Ya Ya where more than one hundred and fifty political detainees were held. He was adopted as Amnesty’s prisoner of the year in 1965. The campaign in that year was unsuccessful. He was prisoner of the year in the following year, 1966, and was then released.
Finally, reference may be made to a letter received in the last few months from an ex-political prisoner testifying to his view as to the part played by Amnesty.
It is with great satisfaction that I write to give you some very good news.
I have just come out of prison. Yes, friends, finally after being deprived of my freedom and having been far from my family, I have been given conditional freedom. It is still not total freedom, as I must abstain for five years from political activities. It does permit me, however, to go back to my dear ones and start working again to earn my own living and help my parents as far as possible. I will thank you, my dear friends, for all the material help you gave me and my family during these years. This helped us to pass these years of hardship.
I must also thank you for the great contribution you made towards my freedom, because in my opinion, which I know is also the opinion of the Portuguese political prisoners, my home-coming - as well as that of a few more friends who have been released, is mostly due to the efforts and the pleadings made by our friends of Amnesty International as well as by our families. Also the work of the Portuguese Democratic forces was of great importance. They made and still make innumerable efforts in order to have a large amnesty declared for all political prisoners and prisoners of conscience. I tell you this to warn you against an idea that one could get, that these releases are due to a liberalisation of the regime in my country and that therefore efforts for amnesty should no longer be necessary. It would be a mistake to have this idea because, as long as all the political prisoners are not free, as long as the security measures which allow people to be kept in jail after having completed their sentences are not abolished, the work for their abolition cannot stop and the movement for amnesty cannot stop. Therefore I pray you, my friends, that you do not stop sending petitions for the freedom of all the political prisoners.
For my part, I will once more thank you and I thank the whole of Amnesty International. It was for me a great joy and it contributed quite a lot to help me stand with courage the hardships of imprisonment to know that in spite of all I was not alone and that friendly hands reached over frontiers to give me their solidarity.
It is really moving to know that in this world we have friends who do not forget us and this strengthens our hope for a better world in which we will all be truly brothers and in which there will be true freedom.
Finally, I want to thank you on behalf of my parents and the rest of my family, who all send you their greetings.
I send to you a friendly “abraco” from your friend, how is always at your disposal.”
The Humanitarian Objective
“When I received your letter I did not know what to do, until after 30 minutes, when I again read the letter. This letter to me it was something that I could call a dream because I could not believe it was mine. I looked at the address outside the envelope and inside the letter to make sure that it was addressed to me because I could not even read my name.
After having satisfied myself that the letter was mine and heard all what was written in it I went to my cell to pray and asked God to give you a long life in this world because I Had given up that my family would ever have any people who could help them.”
Letter received from a Rhodesian restrictee by an Australian Group of Amnesty International.
Both the political prisoner and the ordinary prisoner have to bear alike the constraint and suffering involved in imprisonment. There are however differences. The political prisoner is peculiarly selected as the object of physical and mental pressure. Something has already been said of the physical treatment which had been meted out by various government to their political prisoners.
At the Stockholm conference held in late 1968 by Amnesty the Swedish section submitted a Report. It stated that torture had been practised in more than thirty countries during the previous five years. The object of that conference was to achieve a convention on the treatment of political prisoners. In this respect the aim was to secure something similar to the Geneva Conventions of 1949 which provide precise guarantees for the human treatment of foreign military units and even those engaged in civil war, who have been detained. The effect of the proposed Convention would be to prohibit the use of any form of physical (mechanical or electric) force on the prisoner. It would similarly ban the use of any form of indirect force which results in excessive sensory stimulation or deprivation of the prisoner - (e.g. shining of bright lights - or keeping him in darkness). It would also provide for regular visits by the family of the prisoner.
The political prisoner is alone in being subject to mental pressure or “brain-washing”. Norman Barrymaine’s recent description of his interrogation in China is but another illustration that “Darkness at Noon” is still very much with us. Richard Wurmbrand, the Lutheran priest who was in Rumanian gaols for fourteen years described the effect of brainwashing; the impact of the constant repetition of the words “Communism is good” through the loud speaker. “Soon we were all intermittently conscious of the tape recorded words, but still they penetrated our minds, and when finally the voice stopped, switched off at a central centre somewhere in the prison, the words rang in my head: ‘Communism is good. Communism is good. Communism is good. Communism is good.’”
As a class political prisoners include many intellectuals, writers, and students. Clearly they are much more likely to be agitated by mental inactivity. Koestler, who was under sentence of death following the fall of Malaga during the Spanish Civil War, described in “Dialogue with Death” the effect of mental inactivity during a period of one week when “no memorable events” were recorded in his calendar. By “memorable events” he was referring to things like getting potato soup instead of bean soup for the midday meals, a few privately exchanged words with the warder or the orderly, a cigarette given him by the warder or a spider on the window. “The seven blank spaces on my calendar represents, then, the most absolute degree of uneventfulness imaginable. Nothing, not the least thing, not the least fraction of the least thing, happened which might cause the faintest breath of air to stir the idle sails of the windmill of time.”
On the other hand, if reading or writing are permitted the political prisoner is better placed. Koestler himself was in ecstasy when eventually given John Stuart Mill’s “Autobiography”. Nehru concentrated heavily on reading and writing during his imprisonment in 1932 - 1933 and wrote both his Autobiography and “Glimpses of World History”. Gandhi dictated large portions of his Autobiography “The Story of my Experiments with Truth”, to one of his fellow prisoners during the long imprisonment in the years 1922-24, and Bonhoeffer’s “Letters and Papers from Prison” were collected and published after his death.
On the other hand the political prisoner has corresponding difficulties. This applies particularly to carrying out forced manual labour or indeed any routine occupation. Even where the work is merely heavy but not abnormally so it can become a real hardship for persons unused to it Koestler, when again in prison at Le Vernet during the 1940’s describes, in “Scum of the Earth”, the effect of manual labour on a group consisting mostly of intellectuals. “During the day there had only been one case of physical illtreatment and the speed of work was not over that of professional routine. But for people unskilled in heavy manual labour and underfed to the degree of acute and chronic hunger, the routine became torture. An undramatic everyday torture which transformed our crowd within a few weeks into grey-faced, hollow-eyed, apathetic wrecks.” There can hardly be any doubt that authorities seize upon the inability of intellectuals to carry out hard or routine work. Anatoli Marchenko, who himself was used to hard physical labour, describes in “My Testimony” how the Soviet authorities were deliberately directing Yuli Daniel to carry out “the heaviest kind of hard labour in the camp”. Alternatively, routine reduces the prisoner to despair. Gerald Brooke, whilst held at Potma, was required to carve 250 chess pieces daily by hand.
Amnesty groups can do nothing of course by way of direct intervention to aid the prisoner or secure better treatment. However many letters are directed to prison authorities and refer to the reported conditions under which the prisoner is being held. They do constantly seek to communicate with the prisoner. The important thing is to let him or her know that he/she is not “forgotten”. Where practicable they send him literature and most groups are rendering material help to at least one of their prisoner’s families.
The truth is, as Martin Ennals put it in his 1969 address to the Amnesty International Council, “behind each prisoner of conscience there is always a family, deprived of moral and physical support by conscience and conflict. If release is difficult, relief may be possible and throughout the year funds are sent by Amnesty Groups to families in many parts of the world. The feeling of solidarity is constantly recurring in the letters from prisoners and their families. The knowledge that one is not alone even in solitary confinement is sustenance itself”.
Apart from group work Amnesty has successfully arranged for Christmas cards to be sent to prisoners throughout the world. The name and address of the sender are alone added to the card and it is usually sent direct to the prison. Two letters which have been received recently by Amnesty groups illustrate the impact which personal communication makes. The second is itself an eloquent description of political imprisonment.
Mr Michael Rourke of the Queensland section received the following letter from a Russian prisoner dated the 1st September 1969.
First of all I should like to thank you most sincerely for your welcome letter of the 21st May of this year. I received your letter on the 25th August and was naturally overjoyed to receive a letter in my native tongue from so far away and such a situation as I am in at present. It has already given me moral help, Michael, although you and your friends will perhaps not believe it. Dear Michael: you asked me in what respect you could help me? It is certainly very unpleasant to have to tell the truth, but whatever one might be able to do, these circumstances prevent it. I would be far more grateful to you Michael and all your friends if you could give me material help, for in my situation, material help plays an important role.
Michael, I would be grateful if you could help me by contacting these gentlemen in Moscow and ask them to shorten the period of my imprisonment. I would certainly appreciate it very much.
Sincere greetings to all your friends. I hope to hear from you in the future. Best wishes to my writer.”
The letter which follows is from an Amnesty prisoner who was sentenced to life imprisonment in 1958 for disseminating anti-government propaganda. English was not his first language.
Many thanks for the “In the Whirlwind” … I am very pleased that you chose it. I have introduced my books to all my friends who share the delightful pleasure, God bless you on all our behalf
Concerning that important desire for books specially, I think that if you have a glimpse of my circumstances here you will know why this impatient desire. Men in such a place became very busy about thinking : they have long, long hours, days, weeks, months and years. Many no doubt think about football, love and many other interests. But for myself I am completely concerned about literature, not only because it is my profession but because of my circumstances … To be a prisoner is to be beyond the notice of men! I tell you this because they often rely for consolation only upon the single thought that they may not be illtreated and that some day they may return. But those who are themselves imprisoned learn, after the first shock of lonely confinement, that even imprisonment is not a static interlude in their lives but a part of life itself, full of hazards and graces. Our education by experience has not ceased, we are lodged in cages, but it may permit us sometimes new recreations. It is really a vanity in society to suppose that only in the company of its freedom can we be free! The good in life is certainly deeper than our sorrows and wiser than our complaints! Well, after all, what is a prison? It is to build but one more wall about our soul, but she is still her own creature! This is the discovery all, all prisoners make and it is the beginning of their opportunity.
At first, a prisoner is shocked by confinement, he considers his state not in its own terms but in terms of the outside world. Before he was free and fighting and building. It may be that he had love and the memory of it is close and warm. Now he is cut off, excluded, cast out and made useless. Rumours torment him continually, he is twisted by grievances against his gaolers or his fellows. He develops an obsession with calendars, or ropes or possessions, he hoards or conceals things, all of them directly or indirectly symbols of the outside world.
The change, like the great conversions of ordinary life, often has small beginnings. The prisoner obtains a pillow a little less hard, or he shifts his blanket into a position from which he is able to watch the light fall in a way that he knows when the day begins, and raises his hands to his face to enjoy a single thread of the sun. For the first time since he was captured he is impelled by the comfort of that pillow, by the beauty that is light fall, to see the life of prison as a thing of itself, with its own internal proportions and contrasts, and not simply as an excursion from his former life! Next, after he had through that the weeks, the months, the years were being wasted, he begins to see time as an endowment. It becomes very precious in his own right. He is delivered from being bored and begins to read his books. The book he reads - if a reasonable gaoler allows him to do so - may be his new real life!. Real, not metaphorical, and he like a child is drawn to it and finds within it a companionship of intimate recognitions, so that in the early morning he is eager for the first light with which he may see his book and angry when he is called away from it.”
The Abolition Of Political Imprisonment
Amnesty’s ultimate aim, more implicit than overtly proclaimed, is to secure the total elimination of political imprisonment, and to secure this by the acceptance of the simple idea that the imprisonment of human beings because of what they believe, is wrong.
Amnesty’s success or otherwise in achieving release of prisoners may not necessarily mean substantial progress towards this ultimate goal. It may be said that the release of prisoners is to a large extent random depending upon whether publicity has worried some more sensitive bureaucrat or has otherwise collided with the transitory interests of the government concerned. When Amnesty intervened to secure the release of certain Guineans held in neighbouring African country Sekou Touré was sufficiently grateful to respond by releasing some of his own prisoners but the authoritarian nature of his regime remained.
Political imprisonment and its superadded cruelty are in a large measure a symptom of the inability of the political structure concerned to sustain dissent. In most instances the elimination of political imprisonment requires some basic changes to the political institutions of the country in question. In the case of those countries which have recently become independent it may be said that economic conditions must be transformed if there is to be the necessary political stability and the elimination of political imprisonment.
Whilst, for reasons which will appear, Amnesty in aiding political prisoners is not directing its efforts to mere symptoms it is evident beyond question that certain institutions are necessary to guarantee freedom of political belief.
Ordinarily an organized opposition is essential. That is to say, a recognised and accepted body of dissent to whom power can be peacefully transferred. Next, it requires that the executive must feel constrained to abide by law. Inevitably this means that the political structure requires some division in function between those holding executive power and those interpreting and declaring the law. Finally, there must be some barrier to irregular military intervention in the civil affairs of governments. For many years England regarded a standing army in peace time as something so untoward that it required the annual passing of the Mutiny Act.
It is this question as to the extent to which governmental structure must first be altered in order to achieve political tolerance which requires examination. Spain, Portugal and the Soviet Union share alike the absence of an opposition or an independent judiciary. (The Procuracy, in the Soviet Union, as at present, simply will not do. In 1966 Karavansky, with justice, declaimed against the Soviet Procurator General, Rudenko, who though responsible for the maintenance of legality “did not protest against the introduction of dreadful starvation conditions in the U.S.S.R. camp system. Having acted as State Prosecutor at the Nuremburg trials Rudenko knows only too well what crimes against humanity are. Yet he knowingly persists in sanctioning the cannibalistic rules of the camp regime for prisoners”.)
In this however these countries differ from South Africa and Rhodesia where the institutions necessary to protect liberty of dissent existed and indeed remain today as hollow husks, casualties to apartheid and the determination to maintain white supremacy.
Spain, Portugal and Greece link up with many of the newly independent countries in having been subject to arbitrary military intervention. In the countries of the third world the necessary institutions were there at the outset but collapsed, as we have seen, under the strain of political instability and economic difficulties. The emergencies confronting these countries may be real arising from threats of military take-over, regional or tribal differences (Pakistan and Burma) or racial strife (Malaysia).
It does not follow from all this - allowing for the substantial validity of the view that institutional charge is necessary - that the abolition of political imprisonment is to be regarded as a mere reflex of innovations in the political structure or improved economic conditions. There is a subtle interplay between ideas, political or ethical, and the institutions of governments. If one considers these institutional requirements it will be seen how vital are underlying attitudes and how important prevailing ideas. A working opposition is not a mere constitutional entity. It requires from those in power not only toleration but a willingness to yield up power in certain prescribed circumstances. In the United Kingdom the obligation of the Ministry defeated in the House of Commons to appeal to the electorate, and if defeated, immediately to resign is simply convention. Likewise the independence of the judiciary can be strengthened by constitutional forms by requiring the acceptance of the nation by those holding executive power that they are required to obey what the judiciary determined to be the law. When Andrew Jackson, hearing of the Court’s ruling in Worcester v Georgia rebuked Marshall C.J. by saying “Well John Marshall has made his decision - now let him enforce it”, he was perfectly accurate in stating the weakness of the judiciary in terms of political power. The acceptance of the rule of law depends thus upon that idea becoming sufficiently ingrained to become a tradition. The reason military intervention is a rarity in England depends partly upon constitutional structure but to large degree upon the acceptance by all concerned that the Army is subject to civil control. It is not lack of constitutional forms which leads to the repeated military coups in Latin America. (The Armed Forces are currently in command in Brazil, the Argentine, Peru and Bolivia. Since 1930 thirty-nine military coups have affected every State but Uruguay.) It is an unwillingness on the part of the military to accept the notion that its role is a subordinate role to civil authority.
Tanzania’s introduction of the One-Party State illustrates quite usefully this relationship between ideas and institutions. In the very process of modifying the country’s institutions those in power felt compelled to accept limitations upon their power and set about devising new ‘checks and balances’ appropriate to a One-Party State.
Tanzania had been subject to most of the stresses suffered by newly independent nations. It began with conventional parliamentary government. As early as 1961 President Nyerere emphasised that “it is not essential that there should be a two party system”. In Tanzania, as in all such countries, there was the same urgent need for speedy economic development and the same potentially disruptive tribalism. There had been one threatened military coup. Logic may have dictated that Tanzania follow the course of Nkrumah; that the opposition should be abolished and the expression of criticism forbidden. Tanzania did become a one party State but it did so in a somewhat different way. In January 1963 the National executive Committee of T.A.N.U., the ruling party resolved that Tanganyika should become a one party State. President Nyerere thereupon set up a Commission to recommend the form in which that resolution should be implemented. The Commission deliberated for a considerable period and made a real attempt to combine some form of organised dissent within the concept of a one party State. It was proposed that in each constituency there should be two candidates whose nomination must have been approved by the National Executive Committee but that nominations could be supported in each case by twenty-five registered voters. These would be submitted to a special meeting of the District Conference for the constituency members who would then vote for three from among the candidates nominated. A full list of nominations, together with the votes of the Party District Conference, would then be forwarded to the N.E.C. which would make the final choice of candidates.
The Commission recommended that the new constitution should provide for a permanent Commission with a wide jurisdiction to inquire into allegations of abuse of power by officials both the Government and Party alike. It would have power to summons and call for papers including papers in the custody of Government officers.
In due course these proposals were adopted and Tanzania was the first African Nation to have an Ombudsman. He was Chief Erasto Mang-Enya, the Chief of a small coastal tribe. In the first year he heard sixteen hundred and twenty-seven complaints lodged against Tanzanian officials at every level from President Nyerere to minor officials. The Chief found a reasonable number of the complaints justified.
The reason for this special Tanzanian twist to the one party State can only be because its leaders had preserved the notion that there ought to be some self imposed restraint upon those in power.
What must happen in these newly independent nations is what has in fact happened in Ghana. They must feel the necessity, whether on account of prestige or as a result of a reflex-action to ideals which have been absorbed, to revert to democratic institutions when stability has been achieved. Ghana has been through a lot - Nkrumah, the elimination of the opposition, a military coup and military rule. It has, however, now returned, voluntarily to civilian rule. The second Republic of Ghana has an intricate constitution designed to prevent the emergence of any personal dictator. In what has been described as the fairest general election held in Africa Dr. Busia, in late 1969, became Prime Minister and his Progressive Party holds one hundred and five of the one hundred and forty seats in the National Assembly. Nevertheless a viable opposition exists. Ghana’s gaols are empty of political detainees.
There is clearly a role for Amnesty in the case of these countries. The very fluidity of their current situation and the ideals proclaimed so recently at Independence combine to justify an appeal to the Government’s “conscience”. Every letter written during an emergency, is a reminder that what is occurring is not the norm but a deviation from it. Every letter in reply to an Amnesty member from such a Government - and interestingly these are by no means infrequent from East African Governments - is an implicit acknowledgement that there is some obligation to account for the existence of imprisonment alleged to be political.
The question still remains how far international opinion affects Governments. It is clear that if it does Amnesty International can play an important part in generating it by its function as International Ombudsman for political prisoners. Never again will Governments be able to conceal the existence or extent of political imprisonment or claim that its revelation has come from politically biased source. But does international opinion have any real impact?
It is clear enough that it has little effect where the issue is considered to be a matter of supreme national interest. The Soviet must have been reasonably aware of the adverse effect on world opinion of its invasion of Czechoslovakia but this had no more effect than world opinion had upon Mussolini’s determination to conquer Ethiopia thirty years earlier. Kruschev put the point of view with typical candour. “Even if all the nations of the world were to take a decision which would not correspond with the interests of the Soviet Union and threatened its security, the Soviet Union would not recognise such a decision, but would uphold its rights by force.” South Africa demonstrates the limits of world opinion where the Government is intransigent. Unquestionably outside opinion has provided immense moral support for the small multi-racialist minority but that group has been crushed. It is difficult to imagine international opinion having a pronounced effect on Nationalist party policy except possibly in the field of inter-racial sport. But South Africa is not typical. Moreover, even though it has not yet altered its policies, the South African government is taking desperate if futile propaganda measures to alter its “leper image”.
World opinion is particularly influential where power is diminished. It has undoubtedly played a large part in the process of de-colonization since the war. It was significant in the Suez crisis. The sensitivity of the Soviet government to the publicity attending the Daniel/Sinyavsky trial has been already mentioned. It is world opinion which primarily caused the Colonels to despatch Foreign Minister Pipinelis to the Council of Europe in order to avoid suspension. It is well known that some of the younger Ministers of General Franco’s cabinet barely disguise their anxiety to improve Spain’s image in the eyes of the western democratic countries. Spain is exerting considerable efforts to join the European Economic Community but some of the Six have objected to her entry on political as well as economic grounds.
The conclusion seems to be that international opinion is effective at the point where either it intersects with, or is not contrary to, the interests of those in power. If there is no background of political tolerance, it begins to operate when it has become more than persuasive and is in a measure coercive. In an ideologically divided world where nations are prestige conscious and there are international forums, world opinion may often be of compelling importance to a national government.
In a different context international opinion can combine with some internal opposition where it exists to induce the regime to conform. If Dr Caetano has in fact abolished Portugal’s Secret Police this may well be a perfect illustration of the combined effect of internal opposition and world opinion upon those in power. Portugal has for long been the subject of hostile world opinion on the subject of political imprisonment and apart from its invitation to Lord Russell of Liverpool to make an investigation the Portuguese Government has, from time to time, made various pronouncements on the subject. It had, in the words of Dr Salazar, always found its political prisoners to be “the most fearful terrorists” and that their imprisonment was justified. There had been no suggestion from those in power, prior to Dr Caetano coming into office, that the P.I.D.E. should be abolished. It had however been a prime demand of the government’s opponents in that country. Indeed, when for the first time (prior to the recent elections) an opposition was allowed to contest elections in 1961 a manifesto was delivered by it to the Head of State demanding (inter alia) the release of political prisoners and the disbandment of the political police and the special tribunal. When, on the 31st October 1961, large extracts of the opposition party’s programme appeared in the press the Office of the Public Prosecutor immediately instituted proceedings against twenty-five of its signatories. Arrests and imprisonment followed. As a result, the leaders of the opposition made a public declaration that it was withdrawing all its candidates en bloc.
If, as stated, Dr Caetano has really abolished the P.I.D.E. it is a triumph for the interaction of this opposition and the influence of world opinion in the intervening eight years.
The relationship between international opinion and self-interest does not involve a concession to cynicism. A social idea and a moral habit have often had their origin in enlightened self interest.
International opinion can be vital in supporting liberal elements in the country concerned. There has, quite recently, been an interesting correspondence in the Guardian concerning the resolution of the executive council of the Writers Guild in the United Kingdom to take no action with regard to the position of Soviet writers. A member, Mr Eric Paice, wrote that “the plain fact is that the Writers Guild of Great Britain can pass resolutions and issue press statements till the cows come home but not one day will be taken off the sentence of any writer overseas as a result. In fact the very reverse is to be feared and it was for this reason that the decision was taken to postpone any further action on this matter…” Mr Paice did not, but could have, referred to the fact that pleas for clemency from foreign communists and communist parties and sixty-three prominent Soviet writers was of no avail in the case of Daniel and Sinyavsky. Nevertheless Mr Paice has missed the point. Mr Peter Reddaway in the Guardian correspondence countered by referring to the views of Soviet writers. Anatoly Marchenko in “My Testimony” appeals to the “humanists and progressive people of other countries - those who raise their voice in defence of political prisoners in Greece and Portugal, and the South African Republic and in Spain” to do the same for the U.S.S.R. He also referred to the appeal “to Soviet and world public opinion” of Pavel Litvinov and Larissa Daniel in which they denounced the rigged trial of the writers Galanskov and Ginzburg held for a re-trial “in the presence of international observers” and concluded that “we address this appeal to the Western progressive press and ask that it be published and broadcast by radio as soon as possible. We are not sending this request to Soviet newspapers because it is hopeless”. Mr Reddaway also referred to the statement by the same pair on the 23rd June 1968 after two Moscow demonstrations by foreigners to the effect that “we are deeply moved by the bold action of the three young Britains who demonstrated openly in defence of human rights in our country. Several months ago we realised that our protest had found a response among leading cultural figures in Europe and America. This was, for us, an enormous moral support”.
The point which Mr Paice has missed is not that international opinion will secure the release of writers already imprisoned after widely publicised trials. That would merely result in acknowledgement of weakness. The importance of protests by such organisations as Amnesty International are, in this context, prospective. It is the deterrent influence (and the moral support) which is significant. It is the knowledge that writers trials are going to be publicised in the non-Russian world and are likely to lead to international protest, which the Soviet writers believe will disincline their Government from further inroads into their liberties.
Amnesty And The Problem Of Violence
“In so far as gaining citizenship rights and opportunities for the unfettered development of the African people, who will deny that thirty years of my life has been spent knocking in vain, patiently, moderately and modestly at a closed and barred door.”
Albert Luthuli, 1960
“We are at War”
of a pamphlet recently distributed inside South Africa by the banned
African National Congress (1968).
Amnesty refuses to aid prisoners engaging in or advocating violence. At a glance this might not appear to represent a problem. Violence conjures up an image of the anarchist assassins of Presidents McKinley or Carnot. Few would quarrel with the proposition that maintenance of order is the minimum function of the State. The problem is the State which is not merely imperfect but so dedicated to oppression that all means of dissent are totally excluded. Such a state is itself but an instrument of violence; the violence applied to its opponents. In its clearest form it can best be recognised in the colonial regime which maintains its rule against the popular will of a subject population. “Colonialism is not a thinking machine, nor a body endowed with reasoning faculties. It is violence in its natural state and it will only yield when confronted with greater violence”. (Frantz Fanon: The Wretched of the Earth).
And so it cannot be predicated that the State invariably deserves support when faced with violent revolution. Dissent can become so bottled up that it must either explode in violence or those suffering must be prepared to endure a kind of perpetual servitude.
It is interesting to trace the history of the African National Congress. When formed on the 8th January 1912 it was composed, not exclusively but largely, of African chiefs, clergy, teaches and the like. From the outset the organisation was faced with the struggle against the Native Land Act. The struggle which the A.N.C. waged was vigorous but peaceful and when it failed to achieve a South African response a substantial sum of money was collected to send a deputation to London because the British had retained power to veto certain types of legislation affecting Africans. The A.N.C. pursued a peaceful policy and indeed its leader, Albert Luthuli was awarded the Nobel Prize for peace in 1960. The treason trial of 1956 charged many of the A.N.C. leaders who admitted their desire to change the South African constitutional structure by means of mass action. The Court rejected the charge that they had planned to accomplish their aims by means of violence.
Then, in 1960 came the shootings at Sharpeville and again the A.N.C. called for a peaceful demonstration - a national day of mourning, with huge marches and stay-at-homes throughout the country. It was then that the government illegalised the body and when the state of emergency was lifted the A.N.C. remained under a permanent ban.
Next, the military wing of the A.N.C. was formed on the 16th December 1961 - the Unkonto We Sizwe. The trend to violence was now complete and on 11th July 1963 its leader Nelson Mandela together with Walter Sisulu, Govan Mbeki and others were swooped on by the South African police at Rivonia. The famous Rivonia trial followed and there is no doubt that the African leaders were planning violence. The reason for this was explained clearly enough by Mandela himself in his speech at the trial in June 1964. “I must return to June 1961. What were we, the leaders of our people, to do? We had no doubt that we had to continue to fight. Anything else would have been abject surrender. Our problem was not whether to fight but how to continue to fight. We of the A.N.C. had always stood for a non-racial democracy, and we shrank from any action which might drive the races further apart than they already were. But the hard facts were that fifty years of non-violence had brought the African people nothing but more and more oppressive legislation and fewer and fewer rights. It may not be easy for this Court to understand, but it is a fact that for a long time the people had been talking of violence - of the day when they would fight the white man and win back their country, and we, the leaders of the A.N.C. had nevertheless always prevailed upon them to avoid violence and pursue peaceful methods. When some of us discussed this in May and June of 1961 it could not be denied that a policy to achieve a non-racial state by non-violence had achieved nothing and that our followers were beginning to lose confidence in this policy and were developing disturbing ideas of terrorism … At the beginning of June 1961 after a long and anxious assessment of the South African situation, I and some colleagues came to the conclusion that as violence in this country was inevitable it would be unrealistic and wrong for African leaders to continue preaching peace and non-violence at a time when the government met our peaceful demands with force. This conclusion was not easily arrived at. It was only when all else had failed, when all channels of peaceful protest had been barred to us, that the struggle was made to embark on violent forms of political struggle and to form Unkonto We Sizwe.”
Today the African National Congress is centred outside South Africa. Its freedom fighters have penetrated Rhodesia and its avowed aim is the violent overthrow of the Rhodesian and South African regimes.
South Africa would seem to be a clear case where violence is indeed the only alternative to enduring apartheid. One could point to the Batista Regime in Cuba or the Hungarian uprising upon which opinion might be in agreement. It was no doubt this kind of case which led the Swedish Section of Amnesty, at the Geneva meeting of the International Council in 1969, to formulate (but eventually withdraw) a resolution that Amnesty act for prisoners who have practised violence if “compelled (to) as a last resort to rebellion against tyranny and oppression”. It is not possible however to select any criterion by which it can be determined that the injustice is so clear, dissent and dissatisfaction so widespread and the government so intolerant that the point has been reached where the State can be reformed only by violent revolution.
Moreover what really has to be faced up to in this context are those who assert a “philosophy” of violence. Its most dedicated practising advocates are the Fidelistas of Latin America and, more vaguely, the “new Left”. Their idealized martyr is Che Guevara, the legendary Argentine Guerrilla who met his death in October 1967 at the hands of the Bolivian army. Their current philosophers apart from Mao and Che are the young Frenchman, Regis Debray, and the academic Herbert Marcuse. Che was a dedicated revolutionary. Indeed in his diary of the Bolivian campaign he described the revolutionary as “the highest state of human species”. He disappeared from Cuba in 1965, leaving his post as Minister of Industry to establish continental revolutionary struggle first from Bolivia but, as he hoped, simultaneously in Peru and the Argentine. He had gone to vindicate his famous assertion in “Guerrilla Warfare” that “given suitable terrain, land, hunger, enemy injustice etc. a hard core of 30-50 men is in my opinion enough to initiate armed revolutions in any Latin American Country.” There is no wonder that he was confident. The Cuban revolution was in many ways a remarkable affair. In the end barely 1,000 men achieved victory against an army of 40,000 with air support.
Che’s ideas on violent revolution had a wide and compelling influence. His “Guerrilla Warfare” has markedly influenced African leaders, has been found in the knapsacks of N.L.F. soldiers in Vietnam and is generally more practical and less didactic that Mao’s work on the same subject. The Havana conference in July 1967 of the O.L.A.S. resolved that “revolutionary violence offers the most concrete and manifest possibility for defeating imperialism.”
The ideology of violence is not confined to the Fidelistas. It has, in the United States, become a deliberate mode of protest adopted by Black Power militants. It is an essential ingredient in the curiously vague philosophy of the New Left. Whatever else the New Left propounds it is emphatically revolutionary - “the revolution is an indefinite process that has no stages you can break it down into…” (Debray). To this end external force is to be applied. The reason for this is, as explained by Marcuse in his “Repressive Tolerance”, that “within a repressive society, even progressive movements threaten to turn into their opposite to the degree to which they accept the rules of the game.” Because existing society is a unity which is being attacked, “violence”, in the words of one of the New Left heroes, Frantz Fanon, “alone, violence committed by the people, violence organized and educated by the peoples leaders, make it possible for the masses to understand social truths and gives the key to them.” Guevara, Debray, Marcuse, Malcolm X, Cohn-Bendit have all re-iterated the same view.
It is this ideology which Black Power proclaims. “Violence is as American as cherry-pie” says Mr. Rap Brown. A black leader said during the Chicago riots “every brother on the roof tops can quote Fanon”. What is abnormal in the current trend is that violence is not sought to be justified as a means of last resort but as having, in some way, a virtue in itself. The existing system is so rotten that it needs to be smashed in its entirety. Moreover there appears to be an enthusiasm for the cathartic effects of violence.
In the Harvard Crimson, Richard Hyland has recently written an article “In Defence of Terrorism”. “We have” he says “an irreconcilable tension in our existence all the way from breakfast to bed time. Blowing up a bad thing will relieve much of that tension.”
Amnesty International is surely justified in excluding assistance to the violent revolutionary whatever justification may exist in special circumstances. The cause of the African Freedom Fighters as of the Catholic minority in Northern Ireland is unquestionably just. Their resort to force may be as morally justifiable as it is inevitable. It is not however a question of Amnesty either applauding or viewing critically the ethic of the violent revolutionary’s position in any particular situation. The point is rather that the revolutionary has selected a method of social change which is quite incompatible with seeking to appeal to the “conscience” of governments.
One final word on the subject of violence. Amnesty does and has since its inception worked for Communists detained by Right Wing countries. It may be asked why this should be so in view of the importance of violent revolution in Marxist theory.
It is true that the necessity for force has been heavily emphasized notably by Lenin in “The State and Revolution”. Indeed he came close to asserting that the withering away of the State could never be achieved without it and he recites with enthusiasm Engels’s “veritable panegyric on violent revolution”.
Be that as it may, “The State and Revolution” was completed in August 1917. The communist world has a greater or less degree eschewed permanent revolution for more conventional power politics. As Sydney Hook has recently commented “Marxists, as a rule, have been opposed to individual acts of terror, to the “propaganda of the deed” as a senseless policy that plays into the hands of reaction. They recognise and condone class violence. The violence of class against class is to them only a acute form of the inescapable class struggle. … It was Kruschev, reluctantly convinced of the lethal possibilities of nuclear weapons, who had the courage to modify Leninist doctrine. He asserted that the victory of world communism was still inevitable but not inevitably through war. War was still possible, wars of national liberation very probable, but Armageddon was not necessary. For tactical purposes some national communist parties have cautiously put forward the non-Leninist idea that they may conquer political power without violence - especially if their opponents are accommodating enough to surrender.” Indeed this is the difference in attitude between the New Left and the older communists which Cohn-Bendit stigmatised as “Les Crapules Staliniennes”.
Amnesty recognises the simple truth that the advocacy of communism does not of necessity involve the advocacy of violence - at all events not in any immediate sense. In effect it has applied, not merely pragmatically, but as a matter of principle, Mr. Justice Holmes “clear and present danger test”. Violent revolution may become no more than a formal tenet if it be deferred indefinitely. It may on the other hand constitute an immediate threat to the State. It depends on the circumstances.
The circumstances, that is to say, the proximity and degree of violence advocated, may justifiably determine whether it is necessary to interfere with personal liberty. Where there is an immediate threat of violence which the dissentient is able to implement the State is ordinarily entitled to intervene and, for the reasons mentioned, Amnesty will not examine whether the circumstances constitute an exception. It will however examine whether the circumstances show that the advocacy of violence constitutes a sufficiently immediate and realistic threat for if it be too remote there is simply no basis for the State’s claim to intervene.
Survey of political imprisonment 1950 - 1970
The Soviet Union and Communist Europe
“The whole of Russia wept. So did I. We wept sincerely with grief and perhaps also with fear for the future.”
Yevgeny Yevtushenko - “A Precocious Autobiography”,
writing of the death of Stalin.
There has been nothing before or since approaching Stalinist Russia in the extent of political imprisonment or the cruelty with which it was accompanied. The great purge was, as Robert Conquest has written, “a tremendous historical event; a terror almost unexampled in history; a political revolution and social earthquake greater than all the others which had shaken Russia in this century; the foundation of a new State and system of State. At the same time, the acceptance of massive falsification of its every aspect ate into the consciousness and conscience of the liberal West, a cancer that can only be excised by facing the facts.”
Stalin is dead. The political imprisonment during that period belongs to history and yet it is worth recalling. It is worth recalling because it affects every facet of modern Soviet life including the conditions of contemporary Soviet political imprisonment. It is worth recalling also because of the way in which Stalin, prior to Kruschev’s denunciation, in a large measure, got away with it. He got away with it by a coalescence of concealment and the receptivity of the left to Soviet fabrication and propaganda. World opinion was deceived in part by ignorance and in part by a failure in “facing the facts”.
The purge may be said to have begun with the murder - arranged by Stalin in December 1934 - of Kirov. Then followed the three trials of August 1936, January 1937 and March 1938 which we now know to have been fakes. The trials of the unfortunate Marshal Tukhachevsky and the other Generals were quite simply fabricated. All these soldiers, executed at the time, have since been rehabilitated.
Conquest’s exhaustive analysis, The Great Terror, has revealed the staggering figures involved. In 1937 and 1938 alone, the evidence converges on a figure of seven to eight million political arrests. Of these a million were shot and great numbers of those remaining died in camp or prison. If we take the total deaths over the Stalin period including collectivization it can hardly have amounted to less than 20,000,000 and may have been considerably higher. While Soviet sources have not given figures as distinct from providing the raw material for their deduction they have used the term “millions”. In The First Circle Solzhenitsyn gave the camp population in 1949 as 12-15 million. The Soviet atomic scientist Andrei Sakharov estimated the deaths from execution and prison conditions under Stalin as “at least 10-15 million”. A Soviet writer mentioning one prison alone stated that executions were running at the rate of 70 per day as early as August 1937.
The reality is no better described than by Milovan Djilas, the Yugoslav communist who knew Stalin and became Vice-President of Yugoslavia before cutting with the Communist party. He has, of course, himself since been imprisoned on several occasions by Tito. In The New Class he wrote: “The so-called Moscow trials are the most grotesque and bloody examples of judicial and legal comedies in the communist system. The majority of other trials are similar in so far as facts and punishments are concerned. How are the political trials handled? First, upon the suggestion of party functionaries, the party police establish that someone is an ‘enemy’ of existing conditions; that, if nothing else, his views and discussions with close friends represent trouble, at least for the local authorities. The next step is the preparation of the legal removal of the enemy. This is done either through a provocateur, who provokes the victim to make “embarrassing statements”, to take part in illegal organising, or to commit similar acts; or it is done through a ‘stool pigeon’ who simply bears witness against the victim according to the wishes of the police. Most of the illegal organisations in communist regimes are created by the secret police in order to lure opponents into them and to put these opponents into a position where the police can settle accounts with them. The Communist government does not discourage ‘objectionable’ citizens from committing law violations and crime… Stalin generally operated without the Courts, using torture extensively. However, even if torture is not used and the Courts are used instead, the essence is the same; communists settle accounts with their opponents not because they have committed crimes, but because they are opponents.”
Stalin’s period of power is of course exceptional but it is not an aberration. The secret police have always had extreme power in Russia. In Tsarist Russia the Third Department occupied a powerful position. In December 1917 the existing courts were abolished and in the same month the Cheka was formed. The Cheka developed an organisation embracing the whole of Soviet life. Its prime aim was to combat counter-revolutionary activity. After the attempted assassination of Lenin in August 1918 it gained even greater powers until 1933 when those powers were officially interpreted to the effect that O.G.P.U. had the right to apply “all measures of repression”. This interpretation followed an announcement that the “judicial board” had passed sentence of death on thirty-six persons and others had been imprisoned for up to ten years. By 1933 the O.G.P.U. had built up a private army capable of effective street fighting including tanks. In 1934 Stalin replaced it with the NKVD an organisation having wider powers. The first head of the new organisation was Yagoda. Yagoda proved insufficiently assiduous and in 1938 he himself was executed. Yezhov was appointed. As head of the NKVD he prepared lists of sentence for Stalin to pursue, arranged for confessions which could be reiterated at public trials. In addition he was responsible for imprisonment or execution by the NKVD outside the Courts. In these cases there was no formal prosecution. The matter was dealt with by a Troyka which were boards consisting of three of the security agencies whose function was to pass sentence on “counter revolutionaries”. They followed no particular procedure and the sentence was frequently passed in the absence of the accused. In 1934 the “judicial board” of the OGPU was replaced by a “special board” and the Troykas functioned as branches of the special board. The liquidations carried out came to be referred to as Yezhovfchina and the number affected staggers belief. By 1938 Stalin had recognised that the terror had proceeded far enough. It was announced that the NKVD had been responsible for excesses. Yezhov himself disappeared and was replaced by Beria. A few months before Stalin’s death the NKVD was renamed and partially reorganised with more limited powers as the MVD.
Stalin’s methods were adopted throughout the Communist world. By 1953 Stalinists were in control of all the Eastern European countries except Yugoslavia. Rakosi who described himself as “Stalin’s aptest pupil” had an estimated 150,000 political offenders in detention in Hungary. At the time of the Hungarian Revolt the entity to which the Revolutionaries first directed themselves was the A.V.H. or Hungarian Secret Police, and indeed the revolt may never have become anything more than a series of riots but for the A.V.H. responding by killing many of the writers who had congregated outside the A.V.H. offices in Budapest. In Romania the number of political prisoners in the 1950’s has been put as high as 60,000 - 70,000 and they were largely employed in canal building and other public works in the Danube delta. Czechoslovakia followed with its political trials, notably that of Slansky, and political imprisonment was extensive.
Kruschev - The period of Destalinization
The immediate beneficiaries of Stalin’s death were the Doctors then about to be purged. In January 1953 Pravda wrote before the trial that “the crimes committed by the terroristic group of subversive doctors which have been discovered by the organs of the Ministry of State Security, tell us that there is no crime in which could not be undertaken by the imperialists and their contemptible hirelings who were recruited by the subsidiary of the American Intelligence Service … the International Jewish Bourgeois Nationalist Organization … and the English Intelligence Service. …” Stalin died on the 5th March 1953 and only one month later - on April 6th - the same Pravda had “rehabilitated the accused doctors and declared them honest Soviet citizens and outstanding leaders of science”. The Ministry of Interior had declared them “innocent and released them from custody”. It may be recalled that some of the innocent doctors had, prior to Stalin’s death, already “confessed”.
In 1954 the powers of the M.V.D. were curtailed. Perhaps this was in part due to the struggle for power which ended in the demise of Beria. It would seem that Beria who was the M.V.D. boss, made a bid for power which failed. He was tried by a special session of the Supreme Court, convicted and together with six other M.V.D. officials executed on 23rd December 1953. At all events the K.G.B., with more circumscribed powers, replaced the M.V.D. and in 1954 the special boards of the M.V.D. were abolished.
In 1956 Kruschev addressed the 20th Party Congress in which he revealed Stalin’s crimes. The speech is surely one of the most important events of the twentieth century. It set in train a revolution in the Communist world which is still incomplete. Thereafter followed the public apology to Tito’s Yugoslavia for Stalin’s conduct, the Poznan riots, the Hungarian Uprising, the defection of Albania, the Sino-Soviet split, and the invasion of Czechoslovakia on the 21st August 1968. These events did not of course result from the speech in an immediate sense but its importance is unquestionable.
What were the main changes brought about by “Stalin’s heirs” in the period of de-Stalinisation?
The limitation upon the powers of the Secret Police and the abolition of the special boards of the M.V.D., to which reference has been made, was followed by the freeing of political prisoners. Whilst the camps remained, many of the prisoners of Stalin’s day were released during the following three years. We now know that during the Stalinist period huge areas were set aside, such as North Kazakhstan - equal in size to France - where factories, mines and even farms were run with forced labour. Whilst Kruschev’s boast in January 1959 that there were no political prisoners in the Soviet Union was patently false the changes were none the less radical. Political imprisonment was no longer used as a means to procure large armies of forced labour.
The same trend took place in the Eastern European Communist countries. In March 1960 Janos Kardar, the Hungarian leader, announced an amnesty liberating three-quarters of all political detainees, and later on the 21st March 1963, an amnesty for all political prisoners. Whilst it should not be supposed that there are no political trials taking place in Hungary today it is clear that large numbers of political prisoners have been released. On the 16th August 1962, a lengthy resolution was passed concerning “the termination of illegal trials staged against members of the Workers Movement during the years of the cult of personality.” Special committees were appointed to investigate all political trials between 1949 and 1963 and persons involved in the legal sentences were expelled from the party.
On the 17th June 1964, Scantea, the Romanian Community Party Newspaper announced a decree by which “persons guilty of infringements against the state security have been reprieved for the remainder of their sentence.” At that time it indicted the number effected amounted to more than ten thousand.
In Czechoslovakia an amnesty was granted for those convicted of less serious political offences - attempted defection, slandering of the republic etc. - in May 1961. In Poland on the twentieth anniversary of the Peoples Republic (July 1964), an amnesty was granted, the first since Stalin’s death. In Bulgaria about five hundred political prisoners were released in September 1962 and East Germany belatedly announced an amnesty of one thousand political prisoners in 1964.
Political imprisonment remains very much a reality in the Soviet Union and Communist Europe but there are no longer the vast numbers of the Stalinist period. The responsibility for forced labour camps in the Soviet when it transferred from the police to Republican Ministry’s of the Interior and local soviets. The changed attitude was reflected in the altered name as the camps were re-classified as “colonies”.
At the same time certain more permanent reforms were introduced. The Soviet criminal code was reformed in December 1958. The basic principles of the Code stated that only acts expressly defined as criminal by statute were to be liable for punishment. This provision removed the notorious “analogy clause”. By the 1926 code the Judge had been directed not to leave unpunished actions even if not expressly defined as crimes if these actions were analogous to defined crimes. The Judge was also to fix the penalty by analogy. These offences by analogy have now been expressly abolished. Article 58 of the 1926 Code, an article expressed in language of the utmost width, was also repealed. It had rendered criminal any act which was intended to overthrow, to undermine or to weaken the power of workers and peasants or the basic economical political or national conquests of the proletarian revolution. In terms retrospective legislation was forbidden.
The 1958 Code allowed the accused to be represented by counsel at certain stages of the preliminary investigation. This was important as the preliminary investigation looms large in the Soviet criminal system. A further important step was that embodied in Article 14 of the Principles which stated that “neither the Court, the procurator, nor the investigating agent, has the right to impose the duty of furnishing proof on the defendant”.
This put to rest, in form at all events, the controversy which continued throughout the Stalinist period as to whether the onus did or did not lie upon the accused.
In terms retrospective legislation was abolished.
Whilst it is generally agreed that there has been a regression from liberal trends since the fall of Kruschev in October 1964, it should not be assumed that the Kruschev period itself represented a uniform movement of progressive liberalisation. The Comrades Courts and the Anti-Parasite Tribunals - semi-administrative tribunals outside the ordinary hierarchy of Courts - adjudicated throughout this period.
Moreover the hard liners did not yield easily and made clear any hostility towards the new trends. Thus in May 1959 the conference of K.G.B. officials resolved that “We, Soviet Chekists, fully realise that the restriction of our punitive functions within the country does not mean that we have less work and that the activities of our enemies have weakened”. Even the notion that a trial was more than a mere confirmatory procedure of the investigatory steps already taken seemed to take a long time in dying. Thus the fascinating correspondence in the journal “Literanenaya Gazeta” in 1964. It began with an article on the 23rd May by the eminent Soviet jurist, Strogovich, who wrote that “in the period of the cult of the individual a theory was current among practical workers and theoreticians in the law that ‘maximum probability’ of guilt was sufficient for conviction…” Some months later an assistant prosecutor named Filimonov rebutted Strogovich’s arguments by saying that “the law gives the investigatory agencies the right to bring charges against someone, to interrogate him as the accused, and hence to recognise him as guilty. And the prosecutor brings to trial and, in criminal proceedings, accuses a person who is already guilty in the eyes of the investigatory agencies, i.e. in the eyes of the authorities. And the Court merely verifies to what extent the individual brought to trial accused by the prosecutor, is guilty.” This in turn resulted in a highly critical article in Isvestia accusing Filimonov of being influenced by Stalinist principles. Filiminov considered this article an insult to his honour and instituted proceedings for libel against the author and Izvestia. He lost the case. Nevertheless, despite the new criminal code, it is apparent that many Soviet officials refused and still refuse to accept a role subordinate to the judiciary.
It became clear very soon that the formal abolition of the retrospective legislation was little more than a hollow phrase. The 1958 Statute provided that a Statute making an act punishable or increasing the penalty should have no retrospective force. Despite this the trial took place of three men - Rokotov, Fabishenko and Edlis who were sentenced by the Moscow City Court to maximum prison terms of fifteen years for illegal dealings in valuables and foreign currency. The trial took place in June 1961. The offence took place before 25th March, 1961, but despite this the Moscow City Court gave them the maximum sentence under a decree passed subsequent to the commission of the offence. But worse was to follow. The Procurator General appealed the sentence and the case went to the Supreme Court of the Moscow Republic which tried the defendants under the terms of a second decree on illegal transactions which had meanwhile been enacted on the 1st July 1961. The maximum penalty by now was death. This time the trio were sentenced to death by shooting and the sentence was carried out.
Moreover crimes continued to be defined in vague emotive terms. Thus Article 70 which renders criminal “agitation or propaganda carried on for the purpose of subverting or weakening Soviet authority or of committing especially dangerous crimes against the State or circulating for the same purpose slanderous publications which defame the Soviet State and social system or circulating or preparing or keeping for the same purpose, literature of such content…”
In May 1965, Brezhnev cited Stalin favourably in a public speech. Whatever the ‘thaw’ is to mean in Soviet history it is now evident that a period had come to an end and something new had commenced. The regime cracked down on opposition and unpalatable minorities. The first of these were the writers. It must be understood that the writers in the Soviet Union have been more than a miscellaneous group of dissenters who have collided with authority particularly on matters of literary control. The writer has always had a prominent position in Russia. But in addition they have become an ‘opposition’, or in Peter Reddaway’s useful phrase, an “incipient civil rights movement”. It is a movement which has developed considerably from the early sixties. It moved from merely petitioning for a the release of gaoled writers to challenging the authorities on unconstitutional and repressive acts in every sphere of Soviet life.
A vital decision taken by young Soviet writers was their refusal to be cowed by the monopoly of official Soviet publishing houses. They began publishing political essays, poetry and other works in Samizdat (self-published) underground booklets and broadsheets. The underground distribution of manuscripts and publications abroad has been the Samizdat writers reply to official control.
At the centre of this dissent and, in part as its catalyst, has been the literary journal, Novy Mir. Indeed when the history of liberty in the twenty century comes to be written, Novy Mir must surely rate a chapter. It was founded in Moscow in 1925. As early as 1928 it published the second part of Maxim Gorky’s Life of Klim Samgin and in 1940, Sholokov’s And Quiet Flows the Don. It published one of the earliest books of the ‘thaw’, Dudintzev’s Not by Bread Alone (in 1956). But it was Solzhentsyn’s One Day in the Life of Ivan Denisovich, published in 1962, which climaxed its production of great literary works with official approval. Whilst in the Army, Solzhentsyn had, in a letter, described Stalin as a “busybody”. The letter was read by Sersh. As a result he was arrested, interrogated, beaten and sentenced by one of Stalin’s notorious three-man tribunals to eight years imprisonment without a hearing. He was released in 1953. One Day is a brilliant book based on Solzhentsyn’s experience as a prisoner. Tvardovsky, the editor of Novy Mir took some manuscripts home to glance through them whilst in bed. He picked out Solyhenstyn’s novel and recalls now how he cried as he knew that he was reading a “new classic”. He sent the manuscript to Krushchev. As it happened, Krushchev wanted to use the book as a weapon in the power struggle with hardliners Suslov and Koszlov. On Kruschev’s orders the script was set in type and twenty copies were first run off on the Swedish built presses which the Kremlin reserves for State documents. Copies were distributed to members of the praesidium. Krushchev insisted upon its publication.
Thereafter under the courageous editorship of Alexander Tvardovsky, Novy Mir became the voice of the dissenting writer and intellectual in Russia. It was liberal on most issues. It never let officialdom forget Stalin’s crimes. It supported economic reform, reminded the authorities of Stalin’s responsibility for leaving the country undefended and the collectivization of the thirties, condemned censorship and even described the power struggles in the Kremlin. As pressure mounted and it became subject to threats the journal had to resort to disguise and allusion. Thus when really refuting the claims of those party officials seeking to justify, by their good intention, their participation in the terror it did so in terms of the crimes committed by Ivan the Terrible. Attacked by Pravda and other official journals, Novy Mir told its readers of a magazine - in the Tsarist period - which “constantly received suggestions and warnings of an altogether threatening nature, and many of its issues were held up”. But the pressure mounted. On the 29th March 1968, Brezhnev made a speech attacking the writers, “the abominable deeds of these double dealers” and promised that “these renegades” would be punished. Apart from the trial of writers, described below, Solzhentsyn had been drummed out of the Soviet Writers Union. The editorial board of the magazine Yunost, was cleansed of the liberals, Yevtushenko, Aksionov and Rozov. In December 1969 came the two-day ideological conference in Moscow of over a thousand cultural workers which insisted on “an uncompromising struggle against all manifestations of bourgeois ideology”. Finally, Novy Mir is no more. Four of the journals most active “freedom writers” were dismissed from the staff. In March 1970 Alexander Tvardovsky resigned in protest.
Max Hayward described Tvardovsky’s departure as marking the “decapitation” of Novy Mir and an “incalculable loss to Russia and the world”.
As stated, the publication of One Day, albeit for internal political reasons, was one of the last few literary works of a critical nature, to receive official blessing. It was inevitable that when the “crackdown” started the writers, or some of them, would be detained.
The Daniel/Sinyavsky trial in January 1966 has become a cause celebre. In September 1965 Andrei Sinyavsky and Yuli Daniel were secretly arrested by the K.G.B. on charges of disseminating anti-Soviet propaganda. There was no report of the case in the Soviet press until the 13th January 1966. Despite the fact that they had not been brought to trial they were denounced in the Soviet press. On the 22nd January, Mrs Z. Kadrina, writing on behalf of the Conservative Writers Union, branded the two writers as “pornographic anti-semitic scribblers”. Daniel, somewhat oddly in view of this accusation, is a Jew. Izvestia published readers letters expressed in derogatory terms of the accused and calling for strict punishment. Their trial opened in Moscow on the 10th February 1966 in the Supreme Court. The prosecution based its charges of dissemination of anti-Soviet propaganda upon the allegation that since 1956 Sinyavsky and Daniel had transmitted a series of manuscripts for publication in the West. The accused pleaded not guilty. They did not contest that their writings had been published abroad. They maintained that they were works of fiction, satirical in intent and in no way defaming the Soviet State. (Daniel’s This is Moscow Speaking, a series of short stories, has since been published in this country.) The trial lasted four days. The accuseds’ statements were not published in the Soviet press although a summary of the indictment and a statement by the prosecutors were published. There was restricted admission to the Court and the accuseds’ friends and relatives were refused attendance. According to press report the accuseds’ statements met with roars of laughter from the public present in the court room. In the result both were convicted. Sinyavsky was sentenced to seven years and Daniel to five years hard labour.
The trial, unlike so many others, was given considerable publicity in the West. It brought forth considerable criticism from Communist parties; it also galvanized Soviet writers into petitioning for clemency. It was to prove to no avail. Mikhail Aleksandrovich Saholokov, the author of And Quiet Flows the Don alone at the 23rd Congress of the C.P.S.U. supported the conviction. This resulted in an open letter by the writer Lydia Chukovskaya which was sent to various Soviet writers organisations and newspapers. The letter was not published:
“When you spoke at the 23rd party congress, Mikhail Alexsandrovich, you went to the rostrum not as a private person but as ‘a spokesman for Soviet literature.’
You thereby made it legitimate for every writer, including me, to pass judgment about the things you said supposedly in the name of all of us. Your speech at the congress rally can be called ‘historical’. In the whole history of Russian culture I know of no other case of a writer publicly expressing regret, as you have done, not at the harshness of a sentence but at its leniency.
Furthermore, you were upset not only by the sentence - you also did not like the actual court proceedings in the case of the writers Daniel and Sinyavsky. You found them too pedantic, too legalistic. You would have liked it better if the court had tried these two Soviet citizens unhampered by the legal code, if it had been guided not by the law but by its ‘sense of rough justice’. I was staggered by this suggestion, and I have good reason to believe that I was not alone in this.
Stalin’s contempt for the law cost our people millions of innocent victims. Persistent attempts to return to the rule of law, to strict observance of the spirit and letter of Soviet law and the progress made in this, constitute the most previous achievement of our country during the last ten years. But this is the very achievement of which you wish to rob the people!
True, in your speech at the Congress you held up a model to the court not the comparatively recent period in which Soviet laws were infringed wholesale, but a more distant time when law and the legal code had not yet come to existence: ‘the memorable twenties’. The first soviet legal code was introduced in 1922. The years 1917-1922 are memorable for their heroism and grandeur, but they were not distinguished by their respect for the rule of law, as could scarcely be expected, since the old order had been destroyed while the new one was still in its infancy.
The habit of trying people on the basis of ‘rough justice’ was fitting and natural during the Civil War, in the immediate aftermath of the Revolution, but there is absolutely no justification for it on the eve of the fiftieth anniversary of the Soviet regime. Who benefits from and what is the point of a return to ‘rough justice’ - that is, in effect, to the rule of instinct - when laws have been established? And who exactly do you dream of having tried by this particularly severe procedure, which operates outside the framework of the legal code, and was applied in the ‘memorable twenties?’ Primarily the writers… For a long time now, Mikhail Aleksandrovich, you have been in the habit in your articles and public speeches of talking about writers with scorn and crude mockery. This time you have surpassed yourself. These sentences of five and seven years’ penal servitude on two intellectuals, two writers, neither of whom enjoys good health - that is, sentences, in effect, to illness and perhaps to death - seem to you to be too light. You seem to think that a court which would have tried them not in accordance with the criminal code but in a quicker and more straightforward manner, would have devised a sterner punishment, and you would have welcomed this.
Here are your actual words: ‘If these fellows with their black consciences had been caught in the ‘memorable twenties’, when people were tried not on the basis of closely defined articles of the criminal code, but ‘in accordance with the revolutionary sense of justice, then, my goodness, they would have got something quite different, these turn-coats. And then, if you please, people talk about the sentences being too harsh.’
Yes, Mikhail Alexsandrovich, together with many Communists of Italy, France, England, Norway, Sweden, Denmark (whom in your speech you call for some reason ‘bourgois defenders’ of the condemned men), together with left-wing organizations in the West, I, a Soviet writer, take it on myself to talk about the uncalled-for, completely unjustified, harshness of the sentence. You said in your speech that you were ashamed for those who tried to get a pardon for them by offering to vouch for their good conduct. But, quite frankly, I am ashamed not for them and for myself, but for you.”
The Daniel/Sinyavsky trial had considerable repercussions.
In December 1965, after their arrest, the mathematician, Aleksandr Yesenin-Volpin organised a small demonstration in Pushkin Square demanding a public trial for the two writers. Thereafter, Yesenin-Volpin was committed to a mental asylum - a practice which has become regular with dissenters in the Soviet Union.
In January 1967 Bukovski, another writer, organised a peaceful demonstration in Red Square calling for the release of Daniel and Sinyavsky. Some seven people took part. They carried home-made placards calling for the repeal of Article 70 of the Criminal Code which forbids anti-Soviet propaganda and they included Viktor Khaustov, a young underground poet. As described by Dr Alice Er-Soon Tay in a lecture to the Victorian Section of Amnesty International “Red Square is always closed to vehicular traffic; the demonstrators were then attacked by a group of passers by, police came and arrested Khaustov”. Bukovski was arrested some time later.
Khaustov was tried in February 1967 under a new article of the Criminal Code of the R.S.F.S.R. which had been promulgated in September 1966. It prohibited the “organization of and participation in group activities that grossly violate public order, involve clear disobedience to the lawful orders of the authorities, or entail disruption of the operation of transport, state and public enterprises and institutions”. Khaustov was sentenced to the maximum penalty of three years deprivation of freedom and directed to serve the most severe type of confinement.
In September 1967, after seven months detention in solitary confinement, for investigation by the K.G.B., Bukovski and the other participants were brought to trial. He was also sentenced to three years but in a labour colony. The other participants who offered no defence and expressed remorse over their actions were found guilty and put on probation for one year.
In January 1968 four young Soviet intellectuals were tried in secret and sentenced to varying terms of imprisonment. Alexander Ginzberg and Yuri Galanskov had compiled the White Book which contained a full account of the trial of Daniel and Sinyavsky and it was alleged that foreign publications about the trial were based on it. They and their fellow prisoners had already spent a year in prison, having been arrested in January 1967 following upon a demonstration against the sentence imposed on Daniel and Sinyavsky.
At the end of this trial Larissa Daniel the wife of Yuli and Pavel Litvinov, grandson of the former Foreign Minister, issued a signed leaflet appealing to work opinion and Soviet opinion condemning the trial. Subsequently, on the 25th August 1968, only four days after Soviet tanks had moved into Czechoslovakia, a small group of Russian dissenters in Moscow’s Red Square unfurled banners stating ‘hands of Czechoslovakia’ and ‘shame on the invaders’. They were arrested by the K.G.B. and charged with making a public disturbance and slandering the Soviet Union. The demonstrators, which included Larissa Daniel and Pavel Litvinov, went on trial in Moscow and terms of exile or imprisonment were imposed on all five defendants. Litvinov’s statement to the Court provides a useful description of Soviet trial procedure. He said that “the pre-trial investigator, too, acted as if everything was a forgone conclusion. He collected only those facts that he considered necessary. As for the trial itself, the official procedures were violated. Our friends were not allowed in. My wife was admitted only with great difficulty. There are people here who surely have less right to be here than our friends.
The prosecutor reversed the sense of Article 125 of the Constitution (which guarantees freedom of speech). He said that “liberties are to be enjoyed only if they work in the interest of the State. The defence said, “it is in the interests of socialism and of the workers if people are given these rights”. At this point the prosecutor interrupted to complain that the argument was not relevant.”
It is impossible to elaborate on all the political trials in the Soviet Union - even upon those which have filtered through to the West. In May 1969 a group of Soviet intellectuals delivered a petition to the United Nations Human Rights Commission in New York. It contained an extensive list of political trials. Some of those mentioned were:
(a) the trial of Marchenko, formally condemned for infringement of the internal passport laws (which, incidentally, was not proven at the trial) but in fact condemned because of his book My Testimony concerning the conditions of prisoners in the post Stalin years;
(b) the trial of I. Belogorodskaya for her attempt to distribute letters defending Marchenko;
(c) the trial of Gendler Kvachgvsky and others in Leningrad who were condemned for distributing foreign published books.
In addition to the writers there are two other prominent classes of political prisoners in the Soviet Union. There are those advocating some form of separatist movement. Article 13 of the Soviet Constitution describes the Soviet Union as a State “founded on the basis of the voluntary Union” of fifteen equal Soviet socialist republics. Article 17 purports to grant to each republic the right to secede. In recent years there has, in the Ukraine particularly, been movements formed to secure secession. Early in 1968 Amnesty International received a letter written by a Ukrainian, Ivan Kandyba which had been sent to the Ukrainian Communist Party. Kandyba was in a Mordovian labour camp and he described what had happened:-
“Seven (persons) met in the City of Lvov on November 6th 1960 to found an organisation called the Ukrainian workers and peasants union (U.W.P.U.)… At the meeting Lukyanenko, a Lvov jurist, distributed copies of a draft U.W.P.U. program prepared by himself. This program stated that the aim of the party was the secession of the Ukrainian Soviet Socialist Republic from the Soviet Union. This was, however, to be seen from a Marxist view point and new independent Ukraine should have a Soviet political and socialist economic order. If the majority of the Ukrainian people did not approve of this program then the U.W.P.U. was to be disbanded. What complaint did Lukyanenko and his friends have against the present state of affairs in the Ukraine? The draft program of the U.W.P.U. made extensive criticism of the Communist policies in the Ukraine from the 1930’s onwards, notably as regard to the great famines of that time and also the physical destruction of thousands of the Ukrainian people working in cultural political and academic fields during the ‘personality cult’ period… The Ukrainian Workers and Peasants Union was to conduct agitation and propaganda legally among the Ukrainian people for the secession of their country from the U.S.S.R., a right guaranteed to them by Article 14 of their constitution.”
One of those present at this first meeting was a K.G.B. informer and arrests soon followed. The Court found the accused men guilty of treason according to Article 56 of the Ukrainian Penal Code on the ground that they had “conspired to seize power”. Although the accused denied that they were advocating violence in their campaign for Ukrainian independence and no evidence of this was produced, all appeals on this point were rejected. Kandyba pointed out in his report that other Ukrainians arrested for similar reasons in 1965 were convicted of anti-Soviet agitation and propaganda.
There is a third category of those in the Soviet Union who are detained on account of their beliefs; those who suffer for their religious convictions. The two significant Christian organizations in the Soviet Union are the Russian Orthodox Church and the Baptist Church. Both are recognised by the State and are allowed to maintain their own central organizations, the Moscow Council of Evangelical Christians and Baptists (A.U.C.E.C.B.) representing the Baptist Church. The Baptists are by far the youngest and smallest movement, having only been established in Russia for a century.
Freedom of religion and separation of the Church from State are guaranteed by the Soviet Constitution, but apart from a period of relative calm from between 1943 and 1959 the Churches have been subjected to varying degrees of persecution since 1917. Churches, seminaries, places of pilgrimage, monasteries and so on are subject to arbitrary closure or demolition. Soviet citizens are on the whole free to go to those churches that are open, if they wish, but some people, as for example, teachers, may suffer discrimination in employment if they seem to do so. Control over religious activity began to tighten up about 1959 shortly after that the Ministry for religious affairs issued certain directives to A.U.C.E.C.B. According to these directives the Baptist Church was required to avoid baptizing young people, they were not to try and convert more people to their faith or to organize Sunday Schools, and there were to be restrictions on preaching in Baptist Prayer Houses. At the same time the Ministry for Religious Affairs infiltrated its agents into the A.U.C.E.C.B. to ensure that the directives were carried out. The result was a split in the movement.
One of the chief problems of the dissident Baptists (known as Initsiativniki in Russian) has been the fact that they cannot meet for prayer without being in danger of harassment and arrest by the police. Meetings have to be held unofficially in private houses or in forests, but it has often happened that the police have broken up these meetings, arresting many people and even brutally ill-treating others. Those detained are usually tried and sentenced according to Article 142 or 227 of the Penal Code in the case of the R.S.F.S.R. (Russian Soviet Federated Socialist Republic) and similar articles of the respective Penal Code in the case of the other Soviet Socialist Republics. The sentences passed vary from one years imprisonment to five years imprisonment with hard labour to be followed by five years deportation.
Some Baptist prisoners are held in the complex of labour camps in the Mordovian Autonomous Republic near the town of Potma. Normally prisoners are sent to labour camps situated in the same region (Oblast) as their home; however some of the more important members of the Initsiativniki movement are sent as far away as possible from relatives and friends to a camp outside the Oblast, and possibly even outside their Republic. Whatever the present position, there were in 1968 some 200 Baptists in prison. A complete account of their position up to June 1967 is to be found in Michael Bourdeaux’s The Religious Ferment in Russia: Protestant Opposition to Soviet Religious Policy.
The other religious group which has suffered persecution in recent years is the Soviet’s 3.5 million Jews. Generally they have been subjected to discriminatory imprisonment, synagogues have been closed and a press campaign has been mounted against them. Since the summer of 1961 persons convicted of currency speculation, illegal trading and other economic offences have been shot. A quite extraordinary proportion of those executed have been Jews. In the Ukraine the proportion has been as high as 90% and generally throughout the U.S.S.R. the percentage has varied between fifty five and sixty. It is difficult to trace the extent of discrimination in any individual case but it is difficult not to regard the extensive prosecution of Jews as merely part of the total anti-Semitic campaign.
The Treatment of Political Prisoners
It is clear that there have been changes in the treatment of political prisoners since Stalin’s day. It would seem that the most important prisoners are now sent to the cluster of camps in the neighbourhood of Potma, about 500 kilometres east of Moscow. It is by no means the only collection of camps for political prisoners - the names and locations of about ninety others distributed throughout the Soviet Union are known. Marchenko refers to the continued existence of camps in the traditional areas of Vorkuta and Kazakhstan. Nevertheless it would seem that the major political prisoners are sent to Potma for detention.
In many ways the camps themselves have remained the same as in Stalin’s day. The physical lay-out, the punishment cells, the guards are all more or less as described by Solzenhitsyn in One Day in the Life of Ivan Denisovich. In June 1968 A.V. Sakharov, a prominent physicist, published an essay on Reflections on Progress, Peaceful Co-Existence and Intellectual Freedom. In the course of it he said that, “at the present time the majority of political prisoners are held in the Dubrovlag group of camps in the territory of Mordovia (together with the criminal prisoners it holds about 30,000 prisoners in all). According to available information beginning in 1961 the regime in these camps became steadily more cruel…. The camps are divided into four classes - strict, special, ordinary and hard. Political prisoners go to the first two categories.” It may be added parenthetically that its publication led to his subsequent victimisation.
In a recent essay - Soviet Treatment of Dissenters and the Growth of the Civil Rights Movement - Peter Reddaway states that “The most disturbing aspect of the strict camps, the least severe variety to which political prisoners are sent, is that the dietary norm is 2,400 calories a day, since very few chances exist of buying extra food. Indeed after studying the details in Marchenko’s documents a consultant dietician for Amnesty International reported that (a) the daily menus described in fact only amount to just of 2,000 calories and was also very unbalanced, lacking for example vitamin C; (b) men doing manual labour such as that at Potma, in fact need about 4,000 to keep fit. The norm of 2,400 was below even the 2,500 needed by a sedentary elderly man. As for the 1,300 per day of the special regime, this was enough only for a young child and would quickly result in severe illness.”
The worst camps are the special regime camps not much discussed by Marchenko. Karavansky, a writer, sentenced to twenty five years in 1945, released in 1960, then re-arrested in 1965 describes these camps:
“People are locked up for decades in concrete cells without windows… deprived of air and light, emaciated by the starvation rations, and stuffed seven or ten men to a narrow stuffy cell. The people, little by little loose their resemblance to human beings. There are frequent cases of suicide (for instance the prisoner Susey), mutilation and insanity. Prisoners open their veins and write in blood on the walls “Death to Svaytkin” (Svaytkin is the K.G.B. official responsible for camps No. 10)… Driven to despair they tattoo their foreheads with the words ‘Slave of the C.P.S. Ukraine’. This act is as severely punished as sabotage, subversion or calling for the overthrow of the government, by execution of a firing squad (as with the prisoner Malay)…”
The ordinary and hard regime camps to which most religious prisoners go (only a few get strict regime) generally have better conditions though not always.
The most complete first hand account of the treatment of political prisoners in the Soviet Union is to be found in Anatoly Marchenko’s My Testimony. Marchenko was first arrested in 1960 and sentenced to six years imprisonment for the “treason” of wanting to leave the country. After his release he wrote this book. The K.G.B. then “began to bait him like a hare, following on his heels for months on end”, as Larissa Daniel wrote in an open letter in Marchenko’s defence. He was arrested on 29th July 1968, after having written an open letter to the Czechs protesting against the pressures being put on Czechoslovakia by the Soviet Government and sentenced to a year in a prison camp on the fictional charge of infringing internal passport regulations. He was due for release in July 1969 but was then charged with “defamation of the Soviet political system” while he had been in the prison camp, the evidence being provided by other prisoners. As Larissa Daniel said in her open letter in defence of Marchenko “If you have not read it yet, read his book My Testimony”. He describes vividly the brutality of the system, inadequate diets, heavy labour, poor clothing for icy winters, and warders free to indulge their sadism. He tells of the primitive bathing conditions under which men were taken to the bath house once every ten days when they got a change of underwear. Every twenty days they received a change of bed linen. He also describes the effect of forced labour and the various administrative punishments - veto on visitors, punishment cells, solitary confinement etc. - which are meted out in the event of failure to fulfil the norm.
As previously stated the practice of detaining dissenters in mental hospitals seems to be peculiar to the Soviet Union. In part it stems from the view expressed by Kruschev in 1959, “a crime is a deviation from the generally recognised standards of behaviour frequently caused by mental disorder. Can there be any diseases, mental disorders among men in communist society? Evidently there can be. If that is so then there can be delinquencies characteristic of people of an abnormal mind.” An instruction, which reached the statute book in 1961, provided for “the immediate hospitalization of mentally ill people representing a social danger”. It further provided that “if there is a clear danger to those around him or to himself from mentally ill persons, health organs have the right (by way of immediate psychiatric assistance) to place him in a psychiatric hospital without the consent of a person who is ill or his relatives or guardian”. The writer Valeri Tarsis, the mathematician Esenin-Volpin and Major General Grigorenko - all dissenters - have been detained in mental asylums and Tarsis’ Ward 7 is a thinly fictionalised account of conditions experienced in these asylums.
The anti-Stalin movement was not the prelude to progressive liberalization as many in the West thought and even more hoped. That notion was to prove as much an illusion as the myth that the Communist world is static. The fallacy in assuming de-Stalinization meant liberalization depended not merely upon the misreading of contemporary politics but also the structure of the Soviet state.
In his Trevelyan lectures Isaac Deutscher explained what had occurred in terms of the limited and immediate aims of the Soviet leadership in which he says that “it is more than a decade now since, at the Twentieth Congress, Kruschev exposed Stalin’s misdeeds. That act could make sense only if it had been the prelude to a genuine clarification of the many issues raised by it, to an open nationwide debate on the legacy of the Stalin era. This has not been the case. Kruschev and the ruling group at large were eager not to open a debate but to prevent it. They intended the prologue to be also the epilogue of de-Stalinization. Circumstances compelled them to initiate the process; this had become an imperative necessity of national livelihood. Since the protagonists and even the followers of all anti-Stalinist opposition had been exterminated only men of Stalin’s entourage were left to inaugurate de-Stalinization. But the task was uncongenial to them; it went against the grain of their mental habits and interests. They could carry it out only half-heartedly and perfunctorily. They lifted a corner of the curtain of the Stalin era but could not raise the whole curtain.” De-Stalinization eliminated the terror and the more obvious cruelty. It did not, even before the regression since 1965, lead to basic changes in the structure of the State which would be necessary to eliminate those conditions which almost make inevitable political imprisonment for those who dissent. The notion that the Courts, applying an independent body of law, should control the executive was in Marxist eyes bourgeois and contemptible. Law, prior to the establishment of the classless state, is a mere instrument of class oppression. Russia is still communist and despite the many changes at variance with Marxist theory, that theory nevertheless retains the tenacious influence of a theological dogma. The Soviet State was also Russian and with all the authoritarian tradition which that implies.
It is not surprising then, when all these considerations are remembered, that de-Stalinization - initiated from the top - should not have led to those structural changes in the State which would have consolidated liberal tendencies and in due course have allowed for the tolerance of political dissent.
In the first place the Communist party retained its dominance and the judiciary its state of subordination.
Whilst legislative power is, in a formal sense, exercised by the Supreme Soviet and executive power is vested in the Council of Ministers, these powers are, in the words of the Soviet Jurist Yampolskaia, “under the direct control of the central committee of the communist part of the Soviet Union”. The directors of the executive organs of the C.P.S.U. central committee are legally and not merely politically binding on the executive organs of the State. It can if it chooses exercise direct legislative power. This happened in January 1959 at the twenty-first congress when the party adopted, without the approval of the Supreme Soviet, the seven year and twenty year plans which thereupon took legal effect.
It is apparent that judges who are subject to party control are subject to political control. In the Soviet Union about ninety-nine per cent of the higher judiciary are party members. In any event judges are elected and nomination is officially reserved to the communist party and its subordinate organizations. Moreover judges are elected for limited periods - of five years - with the right of re-election. In the case of the Peoples Court election is by the local residents. Judges of the higher courts are elected by the Soviet corresponding to the territorial jurisdiction of the court in question. Judges are also subject to recall. It was the Law Institute of the Soviet Academy of Sciences which stated in 1957 that “the communist party is the only party in our country. It is at one and the same time the governing party in the absolutely dominant party… it co-ordinates the work of … the courts and administrative bodies…”
The judiciary in this situation cannot freely and independently interpret the law and is bound to be subject to party political influences.
It may be added, whilst on the subject of extraneous influences upon the judiciary, that the Soviet practice of allowing the press to publicize the proceedings prior to trial and of allowing a selected audience only to attend the trial, preclude even an appearance of independence and lack of bias. It is over thirty years since Collard whilst attending a Soviet trial told how the public called out “speak up comrade judge” whereupon the judge coughed and raised his voice. There is not in this such an immense difference from the Daniel/Sinyavsky trial thirty years later. It must not however be supposed that, in recent years at all events, Soviet jurists have been unaware of these undesirable features. In December 1964 A. Gorkin, the chairman of the Supreme Soviet of the U.S.S.R., in an article in Izvestia attacked the hallowed Soviet practice of the press assuming guilt and demanding an exemplary penalty.
However it is clear that even if the judiciary could be insulated from these external influences no good will come until offences of a purely political character are abolished. Such offences as anti-Soviet agitation and propaganda are framed in such wide and emotive terms that there is no room left for an independent court to distinguish between treasonable conduct and mere dissent. The requirement of counter-revolutionary intent only enhances the political character of the offences since that “requires the paying of particular attention to the moral-political make-up of the accused”.
Perhaps the principal defect in Soviet legal practices is that there is no judicial means by which the citizen can demand enforcement of rights conferred upon him by the constitution and no judicial means by which the validity of the law alleged to infringe the rights guaranteed by the constitution, can be challenged. The 1936 Constitution contains a chapter headed “The Basic Rights and Duties of Citizens” and consists of sixteen articles. Articles 124-128 deal with civil rights and freedom. The separation of church and state and church and school are declared in the interest of ensuring “freedom of conscience”. The same article (Article 124) also recognizes freedom of religious worship and freedom of anti-religious propaganda. The next article guarantees to all citizens of the U.S.S.R. freedom of speech, freedom of the press, freedom of association and meetings and freedom of street processions and demonstrations. This freedom is expressed to be given “in accordance with the interests of the toilers” and “with the aim of strengthening the socialist order”. Since in prevalent Soviet practice no criticism of party policy could possibly be regarded as “strengthening the socialist order” these words are already subject to a wide limitation. The guarantee is further limited by an assertion that these rights are “assured” by the fact that “the toilers” are supplied with printing presses, papers, public buildings and material conditions necessary for the enjoyment of the guaranteed right. Article 126 guarantees the right of citizens to unite in voluntary associations, trade unions, co-operatives, cultural, sporting and scientific societies and the like. As stated the individual citizen has no right to question in the courts any All-Union Law which may override his constitutional rights. The only institutional protection given him is through the procuracy.
The Procurator General of the U.S.S.R. is charged with the general duty of supervision over the “meticulous observance of the law by all Ministries and institutions subordinate to them as well as by individual holders of offices and citizens”. The Procurator General is appointed by the Supreme Soviet for seven years and in turn appoints or confirms the appointments of subordinate Procurators at all administrative levels from the Union Republic to districts and towns. The lower Procurators are appointed for five years. The structure of his office includes a department for general supervision, a bureau of investigation for the supervision of preliminary enquiries (which in Soviet law precede indictment and trial in criminal cases and are conducted by the Militia or the Procuracies’ investigating officers), a department for the supervision of investigations conducted by the K.G.B., departments for the supervision respectively of criminal and civil trials in the courts. Strictly the Procurator General’s duties are confined to questions of legality and do not extend to aspects of administrative efficiency or expediency. He is responsible for the preliminary investigation of every case and whether that investigation be conducted by his own investigating officers, by the militia or by officials of the K.G.B. he can reverse the decision, transfer it from one investigator to another, put an end to the proceedings and release the accused and issue the necessary directives in the case. Should the accused be indicted for trial, however, it is the Procurator who conducts the prosecution. At this stage he is placed in a dual position since he is both prosecutor and guardian of the rights of the accused. In the first capacity he may, and often does appeal against an acquittal and against what he considers to be an inadequate sentence. In his second capacity he may, and again in practice often does, appeal or “protest” against the decision.
The procuracy’s inadequacy as a guardian of legal rights rests only partly on this conflicting position. It rests even more on the fact that the individual has no power to compel the procurator to take action or even to compel him to investigate complaints. There is nothing like the Writ of Habeas Corpus. It is entirely within the Procurator’s discretion as to what is done with regard to the complaint of the person aggrieved. The Procurators act under general party control.
The other critical feature of the Soviet system is the pre-trial investigation. This consists of an examination of the accused by an investigating officer at which counsel for the accused may not be present throughout. Soviet law has insulated this preliminary investigation from judicial control. An investigator is not a judicial officer but a member of a Procuracy, the Police Ministry or the K.G.B. Since 1958 counsel have been permitted to represent the accused at certain stages of the preliminary investigation. It is this pre-eminence of the investigatory procedure which explains the importance of the confession in Soviet criminal procedure and the impression one gets that a Soviet criminal trial, at least where political issues are involved, is very much a foregone conclusion.
De-Stalinization failed therefore to inaugurate a liberal trend in the Soviet Union. The deficiencies in the country’s institutions remained largely unaffected. The party called a truce to terror but at no point hinted that it might be prepared to yield its monopoly of power. In Russia a formalized opposition to the Communist Party was and is unimaginable. The recent elections to the Supreme Soviet consisted simply of a ballot of 1517 candidates for the 1517 seats.
Eastern Europe After Stalin
The one feature of the changes in the East European Communist parties which, prior to the Russian invasion of Czechoslovakia seemed to be very important, was the increased power of the National Assembly at the expense of the Party. Before 1952 the National Assemblies in all communist countries were mere rubber stamp bodies which met once or twice a year to confirm unanimously decisions which had been made either by the Council of Ministers or by the Party. The members of the National Assemblies were elected on a single list; each member being nominated by the Party. This changed.
In Yugoslavia, in July 1963, the new constitution established a multicameral National Assembly. Bills are presented in a form which are still incomplete and they are argued out in the Assembly. The definitive text agreed upon is only drafted after these debates have concluded. President Karelj publicly stated that the League of Communists should no longer interfere by command or regimentation in the work of the Assembly.
In Poland the list of official candidates for the Sejm is still a single list but the numbers are greater than the total number of seats in the Assembly. Moreover the Sejm sits continuously.
In Hungary, in November 1966, the Assembly enacted a law concerning the election of deputies. A single list system of candidates was declared obsolete and instead individual constituencies were established permitting the nomination of more than one candidate. It was intended that proposals for candidates would be put forward at electoral meetings organized by the Party but it would be the people and not the Party who would have the right to nominate. The resulting nominations are then to be forwarded to the local electoral meetings organized by the Party but it would still be the people and not the Party who finally have the right to nominate. The resulting nominations are then forwarded to the local electoral committee of the Peoples Front, and if the electoral committee cannot agree to interest any single person with the representation of its interests, more than one candidate can in that event be nominated.
The logical climax to this development was Dubcek’s Czechoslovakia. The Action Program even tentatively contemplated the possibility of non-Communist parties standing for election to the Assembly. This is the acid test. Even Yugoslavia which, in the words of its most prominent recent political prisoner, Mihajlo Mihjlov has “incomparably more freedom than any other socialist state” will not tolerate an opposition. Mihajlov’s experience is illustrative.
Mihajlov was an instructor in literature at the Zadar branch of the University of Zagreb. In the summer of 1964 he was sentenced to five years imprisonment for sending an article to an American weekly critical of the Soviet Union. He was released. In July 1966 he published an open letter to President Tito. In it he stated that “we, a group of a few dozen from every party of Yugoslavia, shall meet in Zadar from the 10th - 13th August and hold a legal meeting to launch an independent democratic and socialist periodical of a political culture and social nature intended to become in the long run the nucleus of a democratic and socialist social political movement under the laws and the constitution of Yugoslavia. Obviously, I need not remind you that Articles 39 and 40 of the New Yugoslav Constitution expressly guarantees to all citizens (and not merely members of the League of Communists) the freedom of thought, opinion, assembly, expression and association”. Mihajlov then added the challenge - “the outcome of our meeting at Zadar will answer the question: is the League of Communists above the laws and the constitution? In short, can a country which communists have been ruling for more than twenty years be also a country in which the rule of law is observed?” The answer to this question came a few weeks later when Mihajlov was arrested. As we have previously described, on the 23rd September 1966 he was sentenced to a years imprisonment and on the 19th April 1967 he was sentenced to an additional four and a half years. In March 1970 he was finally released.
In Rumania, a new constitution proclaimed in August 1965, contained a list of fundamental rights of the citizens and by Article 34 provided that individuals might have recourse to the courts by petition to ensure the implementation of these rights. A decree of July 1967 re-organized the Security Police and Ministry of Interior. At the same time a measure was introduced which enabled the citizen to claim damages for “any unjustified refusal to satisfy his rights by an administrative body” although this right of action was hedged with limitations.
Since 1964 the Eastern European countries have retreated from their openness. The replacement of the Stalinists in Poland by Gomulka after the Poznan riots of 1956 had brought about a revival of public life and a vigorous exchange of ideas. Since then however freedom of expression has been increasingly restricted. In March 1964 the letter of the Thirty-Four, a petition handed to the Prime Minister by the poet Slonemski, the Chairman of the Writers Union, complained of these increasing restrictions. In November 1964 the Polish author, Melchior Wankowicz, was sentenced to three years imprisonment for having transmitted abroad material which was slanderous to Poland. All this is reminiscent of the writers trials in the Soviet Union. In July 1964 Milh was tried and sentenced for articles appearing in a London newspaper. The limits on curial control are still very real. Nevertheless, Courts are functioning and deciding cases although they are not of great political moment. Court judgments are pronounced in public.
In August 1968, even those countries of Eastern Europe who had not followed the Soviet regression, were to learn that there is a limit to internal tendencies to freedom. There was a point at which Soviet military power would intervene. We will never know where the Czech experiment would have ended but it is plain that the immediate effect of the invasion has been to consolidate the repressive trend in the communist world.
The question is whether the ‘thaw’ was merely ephemeral or had a continuing influence. Dr Tay, in the lecture mentioned, summed up the position in November 1969 in these words:
“The de-Stalinization campaign initiated by Kruschev raised the expectation that this strain in Soviet life would now be strengthened. The expectation has proved false: in the last three years the power of the K.G.B. - M.V.D. has again enormously increased; the extent of legal repression and the number of illegalities perpetrated by the authorities have increased and have become more blatant. But for the first time since the 1920’s, Soviet citizens are beginning to challenge these acts and illegalities and for the first time since the 1920’s, they are able to have their protests heard, in the first place, of course in the West, but through the West and through foreign communists, to a growing extent within the Soviet Union itself. Once before, the Tsarist Government found that slight liberalization leads to demands for greater liberalization and that renewed repression at this stage is more difficult than it would have been before the liberalization was granted. The same situation is now occurring in the Soviet Union - though the economic and administrative hold that the Soviet government exercises of Soviet society is far stronger than anything a Tsarist government ever dreamed of.”
The important change which has occurred is that there is now, throughout the Communist world, a “progressive” and a “conservative” wing. There is a deep contradiction between them. If they existed in Stalin’s day they were rarely manifest. Now conflict between them cannot be concealed. It is not confined to the parties in the Soviet Union and in Eastern Europe. It extends throughout the whole movement. The issue which has sensitised the conflict is of course Czechoslovakia. It has led the Soviet Union to threaten support for an opposition periodical aimed against the official leadership of the Italian Communist Party. The Greek Communist Party is split between the progressive wing and a neo-Stalinist leadership. There is an essential difference between the modern repression and that which characterized the Stalin era. Stalin was a radical who was using terror as a means of reshaping the nation. Brezhnev and Kosygin are conservatives intolerant of dissent because they fear change.
This cleavage between the two wings of the communist movement suggest an oscillation in attitudes by those in power depending upon comparative strengths within the party. It would be the merest speculation to predict the long term result. The immense power of modern propaganda, nationalism and even increasing affluence would tend to consolidate the hard line approach. Nevertheless urbanization and above all tertiary education must be a continual threat to party dogma. Perhaps Soviet society will in time prove, in an ironic but somewhat Marxist way, that its major achievements in the fields of industrialization and education will have led to the rejection of the political system which has produced them. Significantly in the period 1950 to 1965 the urban share of the Soviet population increased from thirty-nine per cent to fifty-three per cent. In 1954 there were 1.7 million students. This had increased to 3.6 million ten years later.
The Right - Portugal, Spain, Greece, South Africa and Rhodesia
Portugal, Spain and Greece
Despite their differences the governments of each of these countries have certain common features. Each proscribes the Communist Party. In none has there been any liberal tradition and in all there had been a period of marked instability before dictatorship was established. In Spain and Greece there was Civil War. In Portugal the Monarchy was replaced by a Republic in 1910 and in the next sixteen years knew nine Heads of State, of whom only one was allowed to reach the term of his mandate. There are of course differences. The agony of Civil war still weighs heavily on Spain. On the other hand it has no colonial problems, no Angola or Mozambique. Spain and Portugal survive as relics of post-war fascism whilst the Junta of the Colonels is relatively recent.
Nevertheless political imprisonment is basic to the structure of each regime. That is to say a situation exists in which only one party can legally or practically function, whether the Falange, the Unio Nationale or the Junta of the Colonels. Political imprisonment is the inevitable corollary. Torture and brutality towards political prisoners is part and parcel of the police and judicial systems in all three countries. The truth seems to be that wherever there is political imprisonment it is usually accompanied by some special cruelty over and above that applied to ordinary convicts.
Portugal and Spain
“I have expressed in the past the opinion that the world was suffering from a disease which might be termed intolerance of authority…..”
Dr Antonio de Oliveira Salazar, formerly Prime Minister of Portugal; Recent Trends of Portugal’s Policies International Affairs, 2nd April 1963.
Dr Salazar became Prime Minister of Portugal in 1931 and remained in office until immobilised by a stroke in 1968. Dr Caetano, his successor, has gone through certain liberal motions, but with possibly one very important but recent exception the structure of state has remained the same. On the 18th November 1969 the Portuguese Council of Ministers decided to dissolve the P.I.D.E., the Portuguese Secret Police, and substitute for it a General Directorate of Security. If this was not mere change in name it is certainly important.
Political arrests in Portugal have long been the direct responsibility of the Policia Internacional as be Defasa do Estado (P.I.D.E.) The headquarters of the P.I.D.E. are in Lisbon but it has branches in the main towns of Portugal and the colonies. During December 1968 the Caetano Government passed a decree raising its strength to 3,202, of which 1,187 are in metropolitan Portugal and of the rest, 1,186 are in Angola. The P.I.D.E. depends upon an extensive network of informers. It has powers of detention for up to six months and it is mostly during this period that torture takes place.
In 1945, the special military courts which had been hearing political trials were abolished and two plenary courts - in Lisbon and Oporto - were established. The decisions of these courts are final. In 1949 the Government promulgated security measures which would automatically prolong the sentences of political prisoners. In 1956 the P.I.D.E. was empowered to detain any person accused of engaging in subversive activities and this power of detention would exist whether or not the accused had previously been sentenced by a Court. Indefinite extension of sentence after its expiration is frequently applied to Portuguese prisoners. The form of the decree law of 12th March 1956, provides for “detention in a suitable place for an indefinite period of between six months and three years, to be extended by three further years, as long as security is still endangered.”
The main political prisons in metropolitan Portugal are Caxias and Peniche. Aljube ceased on the 24th May 1965 after having been universally condemned. In addition there is, generally speaking, a political section alongside each prison designed for common criminals. A new prisoner might spend several weeks in cela disciplena, a form of solitary confinement. There would ordinarily be no physical torture during this period but extreme lack of amenities. If it is desired to question him in order to implicate associates, the new prisoner would be taken on nightly visits to the P.I.D.E. Headquarters of Lisbon or Oporto as the case might be. These visits might be protracted for many days and total sleep-deprivation through the “Statute” is applied.
The main aim of the P.I.D.E interrogators seems to be to establish membership of the Communist Party against every person they question, and a refusal to confess to such membership leads to the methods of intimidation complained of by so many ex-political prisoners. The “statute” torture is the principal method used against political prisoners to force them to confess. Lord Gardiner, Q.C. visited Portugal and reported its quite frequent use. Ianallo Mesquite, a lawyer who was himself later arrested described the statue - “I should explain that … it, does not nowadays mean being required to stand all the time and being beaten when you sit or fall down, because that would leave marks. All it does entail is preventing you from sleeping for more than ten minutes at a time so that you almost and sometimes completely lose your reason as a result of sleeplessness”.
It is not known precisely how many political prisoners are at present under detention in Portugal but it is probable that the numbers in metropolitan Portugal have decreased in recent years. There are however, thousands of political prisoners in the colonies, and by decree law 47216 promulgated on the 24th September 1966, deportation of political prisoners may be effected by the simple decision of the Minister of Justice for Portugal and the colonies.
Spain is the other pre-war Fascist State. When the Civil War ended there were more than a quarter of a million political prisoners the vast majority of whom have been released. Spain has made some recent gestures towards liberalism. A Bill was passed permitting the nation’s small non-catholic minority to build their own houses of worship and a Press Bill was passed which would supposedly allow publishers to choose their own editors and handle pre-publication censorship. But the repressive legislation is extraordinarily wide. Thus “an affront to the Spanish Nation, State, or its Political Form with the idea of its unity as well as its symbols and emblems, shall be punished…”.
Likewise “all persons guilty of acts or conducting propaganda against the principles of the National Movement, hereby declared permanent and unchanging, shall be punished…” A fairly recent example of a charge under these provisions was that of Father Victor Manuel Arbeloa who was charged over an article which he had written in the Catholic Action News Magazine stating, what is surely the truth, that both sides in the Civil War had committed atrocities. The Public Prosecutor claimed that the Father’s article was “highly offensive” and an insult to Franco’s National Movement.
Political prisoners in Spain today consist largely of students, writers or members of separatist minorities such as the Basques. Quite recently, in March 1970, Basque priests imprisoned in Zamora gaol smuggled out a letter alleging torture by Spanish police during interrogation and telling of grim conditions in the prison’s clerical wing where four of the five priests are serving sentences of up to ten years. They were all convicted of aiding the Basque underground separatist movement. A method of torture applied by the police is “the little stroll” in which the prisoner’s arms are manacled behind his knees and movement, without falling over, is almost impossible. He is then forced to jump up and down with police beating on his handcuffed wrists.
There is, in addition, a sizeable number of prisoners detained because of their objection on religious grounds to military service. In Spain there is no exemption for conscientious objection and the unfortunate offender, upon release, is called up again and upon refusal is re-sentenced.
“Just for a friendly chat” Police Inspector Basi Lambrou’s explanation as to why he had visited prisoner Andreas Lendakus. The Inspector has been freely accused of being present during the torture of prisoners.
Greece resigned from the eighteen nation Council of Europe when a vote was about to be taken which would at least have resulted in her suspension. The reason for this action was directly related to the Junta’s appalling treatment of political prisoners. The suspension move had resulted from a 1,200 page report on political imprisonment in Greece prepared by a special committee of the Council of Europe’s Human Rights Commission which had been placed in the hands of the various Governments. The report issued after two years of investigation and the Committee concluded that torture and ill-treatment of political prisoners amounted to “an administrative practice”. It is almost impossible to describe with both brevity and completeness the difficulties which have troubled Greece since the second World War but the extensive political bitterness can only be understood in the light of them.
During the German occupation differences arose between the Greek Partisan Forces. The largest group was the broadly based E.L.A.S. (National Popular Army of Liberation). It had been formed in the Spring of 1942 as the military wing of the National Liberation Front (E.A.M.) but was effectively controlled by the Greek Communist party. The chief rival force was the right wing, E.D.E.S., led by General Zervas which was loyal to the Republican leadership. Fierce fighting broke out between the two rival groups even whilst combating the Germans. When the British landed in Athens, after the German withdrawal, on about 18th October 1944, E.L.A.S. was in virtual command. It had driven E.D.E.S. into the mountains of Epirus.
After the British return there followed a remarkable if uneasy period of calm during which E.A.M. members participated in the cabinet.
On the 3rd December 1944 the first civil war began. A demonstration in Constitution Square resulting in bloodshed was the immediate cause but it is almost certain that the communist leaders Siantos and Ioninides had decided upon the matter previously. Six E.A.M. Ministers had abruptly resigned from Cabinet a few days before. The rebellion was short but the fighting was fierce and atrocities were committed. Eventually British military forces in Athens subdued the communists sufficiently for the parties to come together. Churchill visited Athens on 30th December 1944 and took part in the negotiations. The resulting agreement led to the Regency of Archbishop Damaskinos.
The next eighteen months saw the existence of an uneasy truce. It was uncertain to what extent the first rebellion had been locally determined or dictated by the Soviet - most think the former is the more probable. By 1946 however the Cold War was a sharp reality. When elections were finally held in March 1946 the Communists stayed away from the polls.
The right wing had a resounding but suspect victory and General Napoleon Zervas, who led E.D.E.S. to defeat previously, was appointed Minister for Public Order. At once he promised to “answer terrorism with terrorism ten times as strong, disaster with disaster ten times as strong, and slaughter ten times greater. And this is not anti-Christian but God has taught us how to behave to anti-Christian communists who sold their souls to the devil”. To put this statement in context there is no doubt that during the first uprising E.L.A.S. had been guilty of fearful atrocities. Nevertheless this extremity of attitude helped drive the communist remnants into hiding in the mountains where they received the support of mountain villagers. The British had withdrawn their material support from the Athens Government and guerrillas poured down from the mountains. Russian weapons were smuggled across the Yugoslav border. The renewed civil war between 1946 and 1949 brought the Greek economy to a standstill. The U.S. poured money into the country and sent a military mission under General Van Fleet. The mountain villages were forcibly relocated and without village support the rebels suffered terrible hunger and cold. In the meantime Tito’s squabble with Stalin prevented help coming from Yugoslavia. By the Spring of 1949 the nation was virtually at peace, the left wing having been crushed.
Thereafter special military courts were set up to try Left Wing Supporters. Political imprisonment did not begin with the Colonel’s Junta. Thousands of prisoners were detained as a result of Military Courts set up under emergency legislation in 1949. The Right Wing remained firmly in control. A Constitution came into effect on 1st January 1952 but there was little political stability.
The Rightist Party, the Greek Rally, was in power from 1952 until 1955, with General Papagos at its head. His successor, Karamanlis an appointee of the Palace, led the Right Wing, E.R.E., and retained power until 1958. Karamanlis provided dictatorial Government and the E.L.A.S. prisoners for the most part remained in detention in deplorable conditions on the islands off the Greek mainland. In the two elections, November 1963 and February 1964, Karamanlis and the Right were defeated. The Centre Union triumphed and George Papendreou took control with 53 per cent of the votes. By mid-1965 he was forced to resign but by this time most of the left wing political prisoners had been released. Elections were to be held on the 23rd April 1967. It is almost generally agreed that the Centre Union party would have won. On the 21st April, the Colonels staged the Coup which gave them effective power. Some six thousand or so political prisoners have passed through their goals. After studying affidavits and interviewing eighty-seven witnesses, the Human Rights Commission reported that it had turned up evidence of two hundred and thirteen cases of torture. At one stage The International Red Cross reported that out of a group of one hundred and thirty-one prisoners forty-six complained either of torture or of ill-treatment.
Witnesses told of cruel treatment in many places throughout Greece including Crete and Salonica. Much of the torture took place at the dingy headquarters of the Athens secret police on Bouboulinas Street. One fourth of the Human Rights Commission 1200 page report is devoted to verbatim testimony spoken in halting, sometimes disjointed phrases by Greeks who either underwent torture themselves or witnessed the cruel treatment of others.
The prime method of torture as described in the Amnesty Report of January 1968 is the so-called “flange”. “The prisoner is tied to a bench and the soles of his feet are beaten with a stick or pipe. Between beatings the prisoner is usually made to run around the bench under a heavy rain of blows. We examined the feet of a person who suffered this treatment four months before and his soles were covered with thick scar tissue. One prisoner, now in Averoff prison, had his foot broken under this torture. As he went without medical attention, the bones have not set properly and he is crippled. Prisoners vomiting blood from the lungs have generally undergone this treatment. Flanga is almost always accompanied by other inflictions of pain on the prisoner. In general five or six men are engaged in the torture of one prisoner. Common methods accompanying flange are: pouring water down the mouth and nose while the prisoner is screaming from pain; putting “Tide” soap in the eyes, mouth and nose.
Pericles Koroversis, a 28 year old left wing actor, has published an account of his period of six months detention, first at Averoff prison and then whilst in hospital. The book contains a harrowing account of a human being under torture and reveals the state of mental confusion to which the victim is reduced so that if he did want to talk he would be incapable of coherent speech. Speaking of the flange, Koroversis says “that if you did not know they were beating your feet you could not feel where you were being hit. It was like being hurled against a wall of rough granite”. A regular rhythm is less painful than an irregular one, and his captors, apparently knowing this, beat irregularly. “I started to yell,” he wrote. “I did not realize how powerful a human voice could be. I cried my own name, I heard my voice which had a force which was not natural”.
Greek cruelty has a monstrous pointlessness about it. It is as if, in the words of Jean Paul Sartre “whether the victim talks or whether he dies under his agony, the secret that he cannot tell is always somewhere else and out of reach. It is the executioner who becomes Sisyphus If he puts the question at all, he will have to continue for ever”.
Political imprisonment in Southern Africa is an essential adjunct of the racist policies of South Africa and Rhodesia. In short the hard truth is that it will survive as long as those racial policies themselves survive and as long as there is opposition to them. It is equally clear that these policies are supported by the overwhelming body of European opinion in both countries. The Opposition in South Africa except for the miniscule Progressive Party cannot be said to differ in principle from apartheid as advocated by the Nationalists. The Liberal party is extinct. The multi-racialist Europeans are in prison, banned or under house arrest. African dissent is operating extra-territorarily.
“Reduced to its simplest form the problem is nothing else than this. We want to keep South Africa white… ‘Keeping it white’ can only mean one thing, namely, white domination, not ‘leadership’ not ‘guidance’, but ‘control’, ‘supremacy’. If we are agreed that it is the desire of the people that the white man should be able to protect himself by retaining white domination… we say that it can be achieved by separate development.”
Dr Verwoerd, the then Prime Minister of South Africa, speaking in the House of Assembly on January 25th 1963.
It is not possible, even if it were relevant, to examine all aspects of apartheid and the consequent racial legislation in South Africa. However, it is that policy and the coercive laws designed to implement it which are the raison d’etre for political imprisonment in South Africa.
Quite briefly, the policy of apartheid involves that each citizen of the Republic is classified racially. Certain areas of the country have been defined as “White” and the remaining areas are allocated to the other races. This land division derives from the Native Land Act 1913 and its Amendments, the effect of which was to allocate 87% of the total land area of the republic to the whites and the remaining 13% - a patchwork of over 200 reserves - for the Africans.
The position of the Bantu and other non-whites within the urban areas was stated quite exactly by Mr M.C. Botha, the Deputy Minister of Bantu Administration and Development, in the House of Assembly on 7th May 1965. “In terms of our policy we say the Bantu must be present in the white areas to offer his labour but not for the sake of enjoying all sorts of privileges such as citizenship rights, political rights, social integration - we are adamant on that.” Accordingly within the “White” areas themselves an African may not own land, he must live miles from the centre of the city in locations where only persons of an identical race may live, he can only remain in the “white” area whilst he has employment, he may not belong to a registered trade union, he may not strike. He must at all times carry his “pass”. He cannot vote for the union parliament nor for a provincial or town council. He may not represent South Africa in mixed sporting contests. He cannot play sport with whites. Whilst in the urban area the African can only attend certain places of refreshment allocated specifically for him. He may only bathe or fish in certain areas. He can travel in specified public vehicles. He is allocated certain public benches where he may sit. He is required to go to certain specified hospitals and no European ambulance may convey him there. When receiving a blood transfusion he may receive blood in accordance with his racial classification. He may not marry a European. He must only go to African schools and is there taught a separate curriculum. The standard of education designed for the African at those schools was explained by Dr Verwoerd, when Minister for Bantu Education, at the time of introducing the Bantu Education Act (1953):- “When I have control of native education I will reform it so that natives will be taught from childhood to realize that equality with Europeans is not for them … people who believe in equality are not desirable teachers for natives …. When my Department controls native education, it will know for what class of higher education a native is fitted and whether he will have a chance in life to use his knowledge. There is no place for him (the Bantu) in the European community above the level of certain forms of labour … For that reason it is of no avail to him to receive a training which has its aim absorption in the European community.”
When he dies the Bantu will go to a separate cemetery, classified racially.
In the remaining thirteen per cent of the land allocated to the African it is, according to apartheid’s proponents, intended eventually to set up Bantustans divided between the eight African tribes. The first Bantustan, the Transkei, is already evidencing some of the difficulties in the policy which has been propounded. The difficulties flow from the fact that South African has a population of something in the order of 18 million of which approximately 12 million are Bantu and 3.5 million are white. At present there are four million Bantu in the “White” areas. This number thus constitutes more than the total white population in the entire republic and yet is only 40% of the Bantu population. Meantime it will be necessary for the Bantu to remain rightless in the urban areas so as to provide the necessary labour for South Africa’s substantial secondary industry and mining. In the Bantustans there is no secondary industry, no sea ports, no cities, the country is arid and undeveloped. No white investment is allowed and thus it is extremely difficult to see how the African may be enticed back.
That briefly is apartheid. It is not the purpose of this essay to analyse it. It was however necessary from the outset for the government to eliminate all opposition to it both amongst the African and also the minority of Europeans who might oppose it.
The first step was the Suppression of Communism Act 1950 in which the definition of “Communism” was sufficiently wide to cover opposition to apartheid. The definition itself included any person tending “to cause hostility between the races” but in any event the President could declare a person to be a Communist and that was irrefutable proof of the fact.
By January 1956 the Minister of Justice had drawn up a list of 604 persons as former members or active supporters of the Communist Party. In that year 156 persons were arrested and charged with treason. The famous treason trial resulted in all accused being acquitted. In 1960 came the shootings at Sharpeville in which sixty-nine Africans were killed and one hundred and seventy-eight were wounded. African leaders united in a call for a national day of mourning and the huge marches and stay-at homes took place in various parts of the country. For ten days the Government seemed to be on the retreat and the pass laws which had been the main target of opposition were temporarily suspended. Then the Government hit back and rushed through Parliament a law to illegalise the African National Congress and its off-shoot the Pan-Africanist Congress. A state of emergency was declared but lifted after five months. The fifty year old African National Congress (A.N.C.) and the more recently formed Pan-Africanist Congress (P.A.C.) were however under a permanent ban. The treason trial had been a considerable failure for the security forces. The A.N.C. leaders had admitted their desire to change the South African constitutional structure by means of mass action and the only issue before the Court was whether or not that plan involved accomplishing their aims by means of violence. The special court of three judges came to a unanimous verdict - that the prosecution had failed to prove that the A.N.C. had planned the overthrow of the State by means of violence.
It may be said that the year 1960 was the end of the first and unsuccessful phase in the government’s endeavour to control dissent from its racial policies. Sterner measures followed in a body of special legislation. The legislative foundation remained the Suppression of Communism Act 1950 but there were additional measures - the Unlawful Organizations Act 1960, the General Laws Amended (Sabotage) Act 1962 and the Terrorism Act 1967. The special features of the later legislation were:-
1. The creation of three new sets of widely defined crimes carrying the death sentence;
2. the exclusion of the Court’s jurisdiction in relation to the detention of political suspects in police custody;
3. the laying down of minimum sentences for political offences;
4. the abolition of preliminary hearings in major political trials;
5. the placing of an onus of disproof beyond reasonable doubt upon the accused in relation to major aspects of issues to be tried;
6. the creation of capital offences with retrospective operations;
7. the empowering of Courts to try matters which would normally be outside their area of jurisdiction;
8. the empowering of the prosecution to order the detention of witnesses for 180 days in solitary confinement in police custody.
Political prisoners in South Africa today fall into a number of categories:-
1. First, there are the banished. In fact banishment was a power conferred upon the Government by the Native Administration Act 1927 which enabled it to order the removal from one place to another place of any tribe, portion of a tribe of any individual African. Before 1948 banishment was used on rare occasions to remove individual Africans but thereafter it was used frequently. By 1961 a total of 126 men and women had been removed from their homes. A few were urban political leaders but most of them were people from the tribal areas who were opposed to Government policy in those areas. The effect of the Prohibition of Interdicts Act was to prevent a banished person getting an injunction restraining banishment pending an investigation of the grounds for his removal.
2. Secondly, there are the ‘banned’; persons who have received a banning order which usually operates from two to five years. A revised list dated the 28th April 1967 showed that there were 664 people subject to banning orders. By 30th June 1968 the number had grown to 741 people including 26 whose bans had expired and were renewed. The standard banning order consists of six or more pages of restrictions involving prohibition from attending gatherings with a common purpose, gatherings where politics were discussed, gatherings of an educational nature, social gatherings. In fact, banned persons have been convicted of playing bridge, chaperoning a daughter at a New Year’s Eve party, attending a barbeque with two friends and sitting in a kitchen while a party proceeded in a living room. The penalty for breach of a banning order is generally imprisonment for up to three years but in certain cases, such as failure to report at specified times to the police, the period of imprisonment is from one to ten years. There is of course power to suspend the sentence and this has occurred in some instances. The natural extension of this was the house arrest. Mrs Helen Joseph was the first to be placed under House Arrest in October 1962. She was not allowed to receive any visitors except a Doctor or Lawyer neither of whom is on the banned list. She is required to spend the weekend alone at home. During the week, she is allowed out from 6.30 a.m. to 6.30 p.m. Between October 1962 and October 1963 certain persons were placed under House Arrest for the complete 24 hours in every day of the week. Capetown journalist and writer Alex La Guma spent a total of nearly four years in his house without once being permitted to leave it. The only times he went out during that period were to go to a police cell as a “90-day” detainee, to go to Court on a political charge and to go to a police cell again as a “180-day” detainee. The only visitors he received were the police who came to raid his house or to take him away. The effect of banning is to prevent any communication of hostile ideas. All banned persons are by law obliged to notify the police of any change of address or thing that a banned person has ever said or written. In this way Nobel Prize winner Albert Luthuli was never heard from after 1962 until his death in 1967. His photograph once appeared in the press when Senator Robert Kennedy visited him in 1966, but otherwise he was completely silent and his thoughts and ideas were totally suppressed.
3. The third class are simply those who have been detained without trial. Detention without trial is by no means a South African phenomenon. Indeed its legislation in this field is perhaps one of the few aspects of its society to spread across racial as well as geographic boundaries. Detention without trial in South Africa is derived from several sources.
(a) First were those, numbering 11,503, who were detained during the State of Emergency following Sharpeville. Most of those have been released.
(b) Then there are those detained under Proclamation 400. This well known Proclamation of 1960 gives the police the power to detain persons suspected of having information about an offence and to keep such persons in isolation until they have fully and truthfully answered all questions put to them. Many of the arrests under this Proclamation took place in the Transkei. In one case a man was released without charge in 1966 after being held for 203 days. In another instance two m enclosing for inclusion in were each held for 204 days before being brought to Court.
(c) Next were the 90 day no-trial detainees. The General Laws Amendment Act of 1963 (617) empowered any Senior Police Officer to arrest without warrant any person suspected of having information about offences of a political character and then to detain such person for interrogation in solitary confinement for a period of not more than 90 days. By 1965 a little over 1,000 persons were detained under the 90 day law. Nearly all the detainees had been deprived of reading matter or writing materials, and were not able to receive visitors or even see lawyers, save for a weekly visit by a magistrate. Some of these detainees have died violently, one of them plunging to the ground from the 7th floor window of an interrogation room in Johannesburg.
(d) In 1965 the Criminal Procedure Act was amended by the insertion of a Section 215 which substituted the 180 days law. In 1965 relatively few persons were detained under this clause - the number was 17 - In 1966 the total grew to 247. In 1967 there were a further 124 detentions under this law.
(e) The final category consists of detentions under the Terrorism Act 1967. This empowers a Senior Police Officer to order the indefinite detention in solitary confinement of any person suspected of having information about terrorisms. Terrorism is defined so widely that it includes any act calculated to embarrass the administration of affairs of State. Accordingly, the discretion of the police is extremely wide. No information need be given to the public about the detainee. In February 1968 the Minister of Justice stated in Parliament that 90 persons had been detained in 7 months under Section 22 of the General Laws Amendment Act but refused to say how many persons had been held under the Terrorism Act. The Commissioner of Prisons has stated that there were never any more than 1,825 political prisoners at any one time in South Africa, but these numbers are certainly inaccurate or rather depend upon an unacceptably narrow definition of political prisoners.
* * * * * *
The Bureau of State Security (BOSS) with power to co-ordinate all security activities in total secrecy is primarily charged with police activity in regard to political offences.
It was until 1960 rare for the security police to use violence against the suspects. During the period up to and including the State of Emergency 1960 there were sporadic cases of violence against prisoners but by and large interrogations by the security police were conducted within legal limits. Investigations of sabotage and POQO activities in the period 1962-1963 before he 90 day law was enacted involved the use of considerable violence including physical assaults and electric shot torture. In Johannesburg a special “Sabotage Squad” appears to have been involved while in the Cape the main culprits seemed to have been members of the C.I.D. brought in specially to deal with POQO activities. After the 90 day law was enacted, early in 1963, a number of well known political persons of all races were taken to detention, and subjected to the rigours of prolonged solitary confinement but not otherwise interfered with. Selected groups of Africans and Indian detainees, mainly those suspected of personal involvement in acts of sabotage, were however, subject to severe assaults. They were beaten with various instruments, kicked and punched and subjected to electric shock treatment. The sabotage team from Pretoria seemed by 1964 to have taken over most responsibility for interrogations and began applying the “statue torture”. In the years that followed, sleep deprivation has been applied as a matter of course on all un-cooperative detainees. Electric shock treatment has also been frequently used. In reply to a General Assembly Resolution (1968) demanding a report on prison conditions in the Republic, the Government asserted that it did not recognise the right of any United Nations organization to make demands on it. During 1968 four prisoners died in Robben Island Prison through lack of medical attention. In 1969 five detainees died while being held under the Terrorism Act. At the inquest on Mr Nichodimus Kgeothe, who according to the post mortem report had died of bronchial pneumonia, evidence was given that the police had found it necessary to investigate allegations that he had been assaulted while being interrogated. A District Surgeon gave evidence that in his opinion death had occurred as a result of assaults. In March 1968 another detainee James Lenkoe was found hanging by a belt in his cell after a prolonged interrogation by the security police. Expert testimony at the inquest showed that beyond reasonable doubt Mr Lenkoe had received electric shocks on the day of his death and that his death was also consistent with electrocutions.
“I don’t wish to be unkind, but 60 years ago, Africans here were uncivilized savages, walking around in skins. The have made tremendous progress but they have an awful long way to go. We have given them a start. As they earn more they can go up to fifty seats - the same as the Europeans.”
Mr Ian Smith - Prime Minister, March 1970.
In 1961 a constitutional conference resulting from the Monckton Mission was called to consider the position of the then Federation of the Rhodesians and Nyasaland. The Commission reported in October 1960 - recommending majority African rule for the Northern Territories, the then Northern Rhodesia and Nyasaland, and the right of secession for all three territories. The 1961 conference resulted in Sir Edgar Whitehead of the United Federal Party securing formal abandonment of Britain’s residual power to veto Rhodesian legislation. Instead, a Constitutional Council was set up to refer to the Courts any future legislation conflicting with the Declaration of Rights contained in the Constitution. The all-White Parliament of the thirties was replaced by a House of sixty-five seats of which fifteen would be reserved for Africans. The disputes over the franchise are of course of vital importance in terms of the political development of Southern Rhodesia but it is unnecessary for the purposes of this analysis to pursue the details. The fact was that by the end of 1963 the Federation was formally dissolved and Whitehead had been replaced by the Rhodesian Front in Southern Rhodesia. Winston Field’s Government declared the Zimbabwe Peoples Union under Joshua Nkomo illegal under the 1960 Unlawful Organisations Act. Its successor, the Peoples Caretaker Council and the Reverend Sithole’s Zimbabwe African National Union were also declared illegal. Nkomo himself was arrested together with all senior officers of his organisation soon after his return to Rhodesia from abroad in 1963. He was exiled under the Law and Order (Maintenance) Act to a restriction camp and there he has since been detained. The Act has undergone considerable amendments since 1960. The 1967 Amendment required a mandatory death penalty upon anyone guilty of possessing arms of war with intent to endanger the maintenance of law and order in Rhodesia or in any neighbouring Territory. In 1964 the Preventive Detention Act of 1959 was due to expire. The Front Government attempted to extend its operations ten years but the Constitutional Council unanimously rejected the amendment on the ground that it infringed the Bill of Rights included in the 1961 Constitution. The Appellate Division of the High Court upheld this view. The Government simply resorted to its powers under the Emergency Powers Act 1960 which enabled it arbitrarily to arrest or detain without trial as long as the state of emergency was in force. Since August 1964 there has been a State of Emergency in force in one part of the Country or another for all but seven days. On the 11th November 1965 the Front Government, now led by Mr Ian Smith, unilaterally declared independence. Mr Lardner-Burke, the Minister of Justice Law and Order introduced regulations under the State of Emergency legislation on the 7th December 1965 and assumed powers of arrest and detention without trial. In August, 1966 a Constitutional Amendment Act was passed by the Parliament to enable it to enact legislation for the detention or restriction of persons at any time not merely during a state of emergency “in the interests of defence, public safety or public order”. In 1969 Mr Smith’s constitutional proposals were overwhelmingly accepted by the Rhodesian voters. The most astonishing feature of these proposals were plans to include in the constitution itself all the provisions now operating in relation to censorship and preventive restriction, the abolition of appeals in the case of certain charges, compulsory powers to search and seize property and the denial of bail. Presumably the Government has found it irksome to approach parliament at regular intervals for renewal of its police powers under the State of Emergency. After applying for the thirteenth three monthly extension of the emergency in January 1969, Mr Lardner-Burke introduced a Bill to allow him to deprive Rhodesians of their civil and political rights for a year at a time.
It is perhaps useful to clarify the restrictive legislation which has been introduced in Rhodesia in the past ten years and which is presently in operation.
The Unlawful Organisations Act No. 38 of 1959: Under this Act the African Nationalist Parties, the Zimbabwe African People’s Union and the Zimbabwe African National Union have been banned.
The Preventive Detention (Temporary Provisions) Act No. 39 of 1959. In terms of this Act any person can be arrested, detained or restricted to a specific area - to leave the area constitutes an offence.
The Law & Order (Maintenance) Act No. 53 of 1960, amended by Act 12 of 1963. This Act gives the government powers to prohibit gatherings, meetings, publications, the carrying of weapons, impose curfews, and arbitrarily arrest persons for allegedly making subversive statements, intimidation, engendering feelings of hostility between the races, or undermining government authority. Severe penalties including the death penalty are laid down for anyone convicted of possessing dangerous weapons, attacking the police, throwing petrol bombs etc. Over 100 Africans have been sentenced to death under the ‘hanging clause’: 5 were executed in March 1968. Many have now been reprieved and their sentences commuted to life imprisonment, but there are still, as far as is known, over 40 waiting in the condemned cells.
Under this Law the police may arrest and detain up to 30 days in prison any person whom they believe is likely to endanger the public security. The Minister has power to detain without trial for an indefinite period those whom, for reasons which he need not disclose, he considers to be a danger to the public.
Act No. 14 of 1966 amended the Emergency Powers Act by giving the Officer Administering the Government powers to declare a State of Emergency and to make regulations to maintain law and preserve peace. There has been a continual ‘State of Emergency’ since 1966 - not because there is a threat to law and order, but to keep the opposition to the Smith government in check. During the past seven years hundreds of Africans have been detained or restricted. The latest figures to be given by the Minister of Justice, in April 1969, were 140 in detention and 211 in restriction. It is not known how many are convicted in serving sentences.
There are, however probably about 250-300 persons at present held in Rhodesia for political reasons. There are two kinds. There are about 158 detainees who are mostly at Gwelo and Salisbury. They do not do hard labour, and may study, but otherwise prison regulations apply. They are detained indefinitely, some having been held for nearly ten years. They have never been brought to trial. As long as the country is under a state of emergency, the government can hold prisoners indefinitely. Besides detainees there are an unknown number of restrictees, thought to be about 150. All are African. Under Sections 50 and 51 of the Law and Order (Maintenance) Act the Minister is able to limit the freedom of movement of any Rhodesian who, in his opinion, presents a threat to the maintenance of law and order in the country. The restrictees are kept at Gonakudingwa, a desolate and extremely hot area, near the Mozambique border in the South-Eastern portion of Rhodesia. Gonakudzingwa was established in April 1964. Restrictees were then accommodated in barracks which were made of galvanized iron sheets and were described by restrictees as “ovens in the day and refrigerators at night”. Food is delivered and cooked by the restrictees. It appears to have improved since the camps were established.
The result of all this is that the 300 families of political prisoners are often in a desperate plight. The Christian Care Relief Organization, which is affiliated to the World Council of Churches, and Amnesty International have given them much needed financial support.
The Third World
“I am sorry that Dr Danquah died in a detention camp. I am of the considered opinion that if independence means the substitution of indigenous tyranny for alien rule, then those who struggled for the independence of former colonial territories, have not only desecrated the cause of human freedom but have betrayed their people. I wish Dr Danquah had been tried publicly, told what offence he was alleged to have committed, given a fair opportunity to defend himself, and then either discharged or punished, depending upon the fact whether or not his innocence had been established or his guilt proved beyond any reasonable shadow of doubt.”
The then President of Nigeria, Dr Nnamdi Azikiwe speaking on the occasion of the death of Dr J.B. Danquah Q.C., a prominent member of the opposition in Ghana, who died after thirteen months imprisonment and who, (at the time of his death), was then undergoing his second period of detention without trial since Ghana became independent.
Adlai Stevenson’s description of the nations which have become independent of colonial rule since the second world war as the “third world” is a useful label although it admittedly involves an extravagant generalisation. It is proposed to refer to independent Africa as exemplifying most of the features relating to political imprisonment in these countries but also separately to the rather special circumstances in Indonesia.
Political imprisonment in independent Africa is very widespread although it is quite impossible to give any estimate of numbers. There is a chaotic quality about it. Political arrests depend less upon formal legal processes than current political instability. Superficially, imprisonment of political opponents appears as part of a nasty internecine power-struggle at the top rather than from opposition based upon ideological considerations - communist, liberal, multi-racialist - which claims popular support.
A random selection of recent events make this point. An army mutiny took place in Mali ending the role of socialist President Keita. The first step taken by the mutineers was the arrest of army officers.
In the Central Africa Republic, the Public Health Minister, Lieutenant-Colonel Banza, attempted to overthrow the Government on the 10th April 1969. He was tried by a military tribunal on the 11th April and sentenced to death. In May 1969 eight men were hanged in Zomba, Malawi, for their part in an attempt to assassinate President Banda. In the same month executions took place in the Congo of prominent officials including the ex-Minister of Public Health in Katanga. In July 1969 Mr Mundia, the Vice-President of the African National Congress and previous leader of the banned United Party in Zambia was placed in restriction.
Releases like arrests have an ad hoc quality about them. Bloc amnesties are the result. Thus in the Cameroon, President Ahidjo announced a partial amnesty for political prisoners in celebration of the tenth anniversary of his coming to power. In Niger, President Dioro announced an amnesty for all prisoners arrested prior to December 1966. Gabon also has recently announced a partial amnesty. This does not indicate any liberal trend although it does suggest that the current regime feels sufficiently certain of its hold on government.
This unpredictable attitude towards dissent conceals a pattern and, in the light of more recent events in Ghana and Tanzania particularly, does not justify one becoming too depressed. It must however be admitted that the first decade since independence has not been heartening.
Some countries - the Congo and Nigeria in particular - have descended into civil war and chaos. In the case of the others there has been a steady decline into authoritarianism. Since 1960, something over thirty states south of the Sahara and north of the Zambezi have gained independence. At independence all but very few had competitive political parties founded upon the European parliamentary system. But the European graft on the body of African tradition did not take.
The first development was the one-party State which required the elimination of the opposition. Perhaps Africa got off to a bad start with Nkrumah’s Ghana which obtained independence in 1957. In the National Assembly in 1956, seventy-two seats were held by the Convention People’s Party and thirty-two seats by the opposition. In six years the number of opposition members of parliament dropped dramatically so that in 1962 there were only eight remaining out of the one hundred and fourteen seats in the National Assembly. There had been no general elections during this period. Some of the opposition had crossed the floor, some had fled the country and others had been arrested or placed in preventive detention. This occurred despite the fact that during the period 1957-1962 government was fairly stable.
My Nyerere, the President of Tanzania, sought to justify the one-party State in an article written towards the end of 1961. “The existence of two or more stable political parties implies a class structured society and we aim at avoiding the growth of different social and economic classes in our country. If we do avoid this, then opposition will take the form of disagreement on how to do things we agree should be done. It is not essential that this type of agreement should be expressed through a two-party system.”
At all events the opposition soon disappeared in most of the independent African countries. In the Central African Republic the Opposition, M.E.D.A.C., was dissolved by the government in February 1961 and some of its members were arrested; in Chad it was announced in March 1961 that the T.P.T. and the P.N.A. had merged; in the Republic of the Congo (Brazzaville) in about August 1961 the opposition was abolished; in Dahomey in 1961 the government dissolved the U.D.D. and many of its members including its leader were arrested; in Gabon in the same year when elections resulted in a complete victory for the single list candidates put forward jointly by the Bloc Democratique Gabonais and the Union Democratique Et cetera Sociale Gabonaise the opposition was effectively eliminated by the government winning all sixty-seven seats in the Assembly; in Guinea all parties had joined Sekou Toure’s P.D.G. soon after independence in 1958 and no opposition has been tolerated since; in the Ivory Coast the 1959 elections resulted in all seats in the legislature going to Houphouet-Boigny’s P.D.C.I. party and there is no organised opposition; in the Sudan the Union Sudanaise Party won all seats in March 1959; in Mauritania the Parti de Regroupement Mauritani won all forty seats in the May 1960 elections and opposition was effectively obliterated; in Niger the Sawaba Opposition Party which won six seats at the December 1958 elections was dissolved when the election results were annulled and many of its leaders arrested; in Senegal the opposition faded away when in March 1959 the Union Progressiste Senegalaise won seventy-nine out of the eighty seats available with some opposition leaders leaving the country and others joining the government; in Togoland the opposition disappeared when in the 1961 elections the P.U.T. secured all fifty-one seats in the 1961 elections after the nominations of the opposition party, the Juvento, were not allowed to go forward; in Tanganyika (now part of Tanzania) when T.A.N.U. won seventy out of the seventy-one seats in 1960; in Kenya, in November 1964, when during the final stages of discussing the new republican constitution K.A.D.U., the opposition party, announced its decision to disband and many K.A.D.U. members crossed the floor to join T.A.N.U.
The extinction of the opposition in these countries led to many arrests, or as it was euphemistically called, preventive detention - of which more later. The one-party state did not produce the political stability for which Africa was yearning. Next followed military rule. Before 1963 the Army had not played a significant role in the politics of tropical African apart from the special situation in the Congo. Since however, seven former French African States have succumbed to military coups. In Dahomey, after the coalition government was dissolved by decree in 1961, the military intervened (1963). In Togo, the President Sylvanus Olympoio, was assassinated in 1963. In Upper Volta, President Yameogo abdicated in favour of military government in December 1965 and was immediately imprisoned. In Ghana, Nkrumah was ousted by a military coup in February 1966. (Ghana has since returned to civilian rule.)
Political imprisonment was an immediate successor to military takeover.
It is necessary to say a word about preventative detention which is such a common feature of the newly independent African, and for that matter Asian, states. Generally preventive detention purports to be limited to an emergency but the power to declare an emergency is vested in the executive. The effect of preventive measures is to suspend or modify the operation of normal laws and regulations. Such guarantees as the remedy of habeas corpus and similar procedures to challenge arrest or detention are suspended. The regular courts may be deprived of their jurisdiction to deal with such offences as those relating to public order or the security of the State. The function of the Courts applying these measures becomes purely formal as the subjective decision of the executive that detention is necessary for the purpose of the emergency is not open to challenge. The detailed reasons for arrest or detention may not be given to the arrested person. He is simply informed that his activities are considered prejudicial or that his detention is deemed to be necessary.
By Ghana’s Preventive Detention Act 1958 a person could be placed in detention for acting in a manner prejudicial to the security of the State for a period of up to five years (on occasions it could be ten years) even though there was no State of Emergency. No criminal charge needed to be preferred against the detainee. The Act was much used. In Ghana twenty-three person were arrested and detained by the end of 1958. In December 1960 one hundred and eighteen persons were detained and in October 1961 over fifty were detained, almost all being prominent members of the opposition. It was estimated that in all more than one thousand persons had been imprisoned under the Act. Many Ghanaians had before Nkrumah’s overthrow fled to neighbouring Togoland where some nine thousand sought asylum from political persecution.
Malawi demonstrates the increasing stringency of preventive detention legislation. At the end of September 1964 the first of what were to be a series of public security regulations was issued under the Preservation of Public Security Ordinance. These regulations gave the Prime Minister power if he was satisfied it was necessary for the preservation of public security “to restrict and control the residents and movement of persons, to prohibit, restrict and control the residents and movement of persons, to prohibit, restrict and control the holding of assemblies, to prohibit publications which he considered prejudicial to public security and to regulate and control the production of publications”. It was pursuant to these powers that Ministers in Dr Banda’s government, such as Mr Chipembere, were later arrested and confined to a four mile radius from their homes. In November 1964 the Constitution (Amendment) Act was passed making provision for preventive detention “when such detention is reasonably required in the interests of defence, public safety and public order”. There followed further amendments to the Constitution empowering the Prime Minister to dismiss any member of parliament who ceased to represent a political party for which he was elected; a power which he exercised to deprive ex-Ministers of their seats. Even more stringent security regulations came into force in February 1965. They empowered the Minister to made a detention order if he “considers it to be necessary for the preservation of public order”. In such a case persons could be arrested without warrant. The detention could be for an indefinite period, but the Minister must review each case at the end of every six months and may suspend a detention order subjecting the ex-detained to restrictions relating to his employment, residence, contacts with other persons after employment, movement and possession of articles. These regulations went even further and permitted the arrest and detention, by an authorised officer, or any person for twenty-eight days without a detention order being made against him. The amendments to the constitution made the position perfectly clear by eliminating the Bill of Rights Provisions and transferring the appointment of High Court Judges from the Judicial Service Commission to the President.
In Kenya Parliament was asked in May 1966 to approve a Bill to amend the constitution and the existing Public Security Act thereby giving the President powers to make special regulations in the interests of public security. This followed the resignation by Mr Odinga, a former Vice-President and a Luo, together with twenty-nine other Ministers and members of parliament from the K.A.N.U. party. They formed the Kenya Peoples Union which in effect became the party of dissent. The legislation which followed defined “public security” as including among other things “the defence of Kenya and its people, against any crimes or conspiracy to overthrow the government or the constitution”. The President was enabled to make regulations for the preservation of public security and he was given special powers to make regulations providing for the detention of persons, the restriction of movement or the compulsory movement of persons. It was, however, provided that the President may seek parliamentary approval before he invoked these powers. He could thereupon exercise these powers for an eight month period which was renewable by parliament.
This legislation became effective on the 6th June 1966 and was followed by the arrest of K.P.U. members. No reason was given for their detention. In August 1966 amendments to the Public Security Act were published. These included provisions permitting the Review Tribunal established under the Act to refuse admission of members of the public to its proceedings.
The arbitrary nature of preventive detention is in many instances cloaked by the appearance of judicial review. In countries with an English tradition the unfortunate effect of the war-time decision of the House of Lords in Liversidge v Anderson (1942) A.C. 244 had permeated through. That decision upheld the right of the executive alone to decide, without effective challenge, whether a prospective detainee was “of hostile origin” etc, even though the legislation did not expressly or even obviously withdraw the matter from the Courts. The decision has been applied throughout those countries of the Third World with an English legal tradition. In Ghana the Supreme Court adopted it in 1961 (the case of B. Akoto) and in India it was applied to prevent judicial examination of the grounds of detention in Gopalan v State of Madras (1950).
No doubt, quite independently of this decision, a government could, by appropriate legislation, have taken the matter out of the hands of the Court. Nevertheless Liversidge v Anderson and its descendants have enabled governments to provide a judicial garb to what is in reality arbitrary detention. The Courts can do nothing but examine whether the formalities have been complied with.
Recently, and perhaps more disturbingly, the rule of law has been subject to direct assaults both in Zambia and less surprisingly, in Malawi. Zambia has been much respected since independence. The unhappy events which led to the attack on the judiciary and the resignation of Chief Justice Skinner are perhaps only transitory. In resigning Chief Justice Skinner said “confidence in the judiciary is a delicate bloom in Africa and I am not going to risk destroying its growth in Zambia”.
In Malawi the situation leading to the resignation of four High Court Judges was more extreme. Under new legislation the country’s traditional African Courts may be empowered by President Banda to try all types of cases including capital cases and to impose the death penalty. The High Court is deprived of the power of supervising or controlling the proceedings which these African courts initiate.
Political liberty in Africa is, to extend Chief Justice Skinner’s phrase, a “delicate bloom” but it is not yet crushed. The situation remains tantalizingly fluid.
The political stresses at the top must be viewed against the divisive difficulties which confront these societies. It has, for instance, long existed in Kenya and has flared into the open since the assassination of Tom Mboya, the former Minister for Planning and Economic Development. Most allegations are aimed at the Kikuyu. The tribes other than the Kikuyu, notably the Luo, feel that the Kikuyu use their control and numerical predominance in government to ensure continue control over Kenya. Certainly the number of important positions held by the Kikuyu is totally out of proportion to their overall numerical strength. The assassin of Mboya, a Kikuyu, claimed at his trial that he was given a gun with which he killed Mboya by members of the K.P.U. party. Odinga who leads that party is a Luo as was Tom Mboya. K.P.U. members have claimed that the assassination was a Kikuyu plot.
Bitterness came to a head on the 26th October 1969 when President Kenyatta arrived at Kisou, a Luo town, as part of a two-day tour of the area. After a speech in which he criticised the K.P.U. and its leaders, stones were thrown and as a result the police intervened and eleven were killed, and over one hundred injured. The next day all K.P.U. members of parliament and other officials were detained under the Preservation of Public Security Act. Odinga and his deputy were placed under arrest and later detained. On the 30th October, the K.P.U. was banned as being “dangerous to the good government of the Republic of Kenya”.
Most of these countries face enormous economic difficulties. It is not easy to see how political stability can be achieved in a country like Equatorial Guinea which became independent from Spain in 1968 with a per capita income of $40. In Dahomey, the scene of four coups d’etat since independence, one such coup in December 1967 resulted directly from the government’s imposition of a 25% tax on incomes in an attempt to meet the enormous budgetary deficiency. It should be added that the new government, once in power, found it was unable to revoke the tax.
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Each of the countries of the “Third World” are in fact facing very real “emergencies”. The “emergency” cannot be dismissed as just an excuse proclaimed by those in power to lock up their opponents. The conditions of instability produce violent dissent. If the State is required to guarantee freedom it must, of necessity, continue to exist. It cannot be morally obliged to concede toleration to those who threaten it with violent or unconstitutional overthrow. Freedom of dissent presupposes the existence of the State. Stabler democracies face these problems during war time when the threat is external. In 1940 there would have been few to deny the right of the United Kingdom government to enforce provisions such as Regulation 18B to detain “the fifth column” or in the words of the Regulations, those of “hostile origin or hostile association”, although most would believe that the grounds of detention ought to have been examinable by the Courts. The position is not different in principle when the threat is internal.
The truth therefore is that where political and economic instability are such as to produce a kind of permanent state of “emergency”, political imprisonment will be inevitable. Ultimately, the elimination of political imprisonment in the Third World involves in part at all events, the removal of those conditions which produce it - the abolition of poverty and extremes of wealth, the maintenance of economic stability, the elimination of tribalism, the creation of a stable relationship between the central power and regional or racial or linguistic minorities.
Nevertheless, there is an obvious temptation for those in power to rely upon preventive detention and other security measures to maintain their hold long after these measures have ceased to be justified. India, possibly the most democratic of Asian countries, retained in preventive detention persons imprisoned during the time of the Chinese invasion long after that crisis had passed. Singapore is another instance. It has today considerable numbers of the opposition locked up under “emergency” measures. They are usually detained under the Preservation of Public Security Ordinance 1955. A few have been held since before Singapore became independent on joining the Federation of Malaysia in 1962. About one hundred and twenty were detained in February 1963 during “confrontation” with Indonesia. Despite the cessation of confrontation many detainees were still in prison years afterwards, and they must give an undertaking that they no longer hold left wing views before the government will release them.
Ghana is the hopeful example of a country which shows that the reversion to liberal behaviour is a practicable possibility.
It is not intended to deal with political imprisonment in Indonesia during the Soekarno regime - considerable though it was. Nor is it intended to describe the savage massacre which followed the attempted coup. It is obvious that the events of the night of 30th September 1965 have had the most profound effect upon Indonesia and Asia generally. They involved the extinction of the Communist Party (P.K.I.) as an organised force. It is intended only to look at the position today.
It took the government four years - four years of agonising uncertainty for thousands - to decide what to do with those who have languished in gaol or detention camps since being rounded up after the abortive coup. Recently Attorney-General Soegi Harto and Deputy Army Chief for Development, Major General Hartono, gave their own estimates of the number of detainees. Attorney-General Harto’s figures suggested that prisoners consisted of about five thousand leaders and others who were directly involved in the coup attempt (category A), 10,000 - 11,000 hard core actors suspected of being involved (category B), about 26,000 nominal members of communist organisations (category C), and about 27,000 detainees not classified but probably belonging to category C (category D). Hartono’s figures were category A - 4,668, category B - 15,999, category C - 29,124 and category D - 22,114. There are various unofficial estimates, some as high as 150,000, but the International Commission of Jurists in December 1969 reported that “the information at our disposal indicates that there are at least 120,000 imprisoned in the 350 different prison camps of which 80,000 belong to category C”.
It is perhaps somewhat disturbing that the government does not know exactly how many political detainees it actually holds. It is nevertheless agreed upon a course of action. Category A detainees, the hard core communists, are to be tried as soon as possible; category B, the less dangerous prisoners, are to be sent to Buru Island in the Banda Sea and the category C prisoners were to be freed, and if “society” would not accept them, they were to be resettled in Sumatra or Kalimantan under the routine transmigration programme.
In fairness, it must be stated that the detainees do present the government with a problem. There is intense anti-communist feeling throughout the country. Moreover, the lands and homes of the detainees have been seized by others who would refuse to restore them. As communist sympathisers the detainees are likely to be ostracised by other residents of towns and villages.
Brian May reported in “The Australian” (the 30th December 1969) on the conditions in Buru Island. The settlement can only be approached through seamy swamps and is three degrees south of the Equator. The newly built huts are in a rectangle surrounded by high barbed wire fences and sentries are posted to watch towers dominating the landscape. As stated, B category prisoners are to be transferred there, and already 2,500 have been transferred. They are alleged to have been involved in the coup or to have been connected with the communist party, but there is insufficient evidence to bring them to trial. They have never been convicted of any crime, but are condemned to live on this uncongenial island, previously inhabited by about 30,000 people scattered along the coast - for an indefinite period without their families, prospects of marriage, or at this stage, even soap.
May was able to discover the surprising youth of many of the prisoners. Some were only twenty years old, which means that they were about sixteen when arrested. He said that it was obvious they were glad to be in the open air after four years incarceration in prisons which were often totally dark.
What is the prospect of these people? Attorney-General Harto said that the government hoped that eventually most of the prisoners would see the error of their ways. As their enlightenment progressed they would be given greater freedom. Eventually, when completely reformed, they would leave the island. He admitted frankly that the young single men had no foreseeable prospect of marriage. Eighty women in category B would be moved to the island eventually with the rest of the 10,000 prisoners in this class. But by the time the community had evolved sufficiently to make new marriages possible they would not be eligible. “They will be too old” Harto said.
The government appears to be proceeding with its plan. At the end of 1969 the International Commission of Jurists reported the release of 29,000 prisoners.
What has been said about political imprisonment in the somewhat arbitrarily selected areas of the world referred to above is neither complete or detailed. It represents at best a patchy description in certain limited areas of the contemporary world. Nothing has been said about the countries of the Maghreb - the illtreated supporters of Ben Bella (and Ben Bella himself) held in Algeria, the prisoners held without trial in Morocco since 1963, the students and intellectuals held as a result of the September 1968 and March 1969 trials in Tunisia (where however the future is hopeful). Little - to the point of triviality - has been said of Latin America or the Caribbean - in Cuba for instance the estimate of the number of political prisoners vary between 15,000 and 65,000, many in indoctrination camps (where, however, the treatment appears to be reasonable), no reference has been made to the trial of Estaquio Tolosa in Argentina, nothing of the succession of political prisoners in Brazil which have followed the “ins” and “outs” of that country’s politics, but particularly since the military take over in 1964; nor of Mexico where the prisoners detained during the year of the Olympic Games in October 1968 are at the time of writing still in prison living on a subsistence diet. Nothing has been said of seemingly obscure Paraguay, where the political imprisonment practised by General Stroessner’s fifteen-year old regime led Amnesty International to publish a thirty-four page report on that country.
Asia has been largely ignored, except for Indonesia, but whilst the brutality of the Chinese towards Anthony Grey is universally known, relatively few know of the other prisoners held in that country, in some cases for years. Few suspect that Singapore - stable, solid, progressive Singapore - has more than its share of political prisoners. Probably only Amnesty members, of those living outside the country, know of the extraordinary harshness under which opponents of Lee Kuan Yew’s government live in Queenstown prison. Oddly, Lee Kuan Yew himself appealed to Amnesty, when in fear of arrest before the breach with Malaysia. Malaysia itself, Pakistan and South Korea have all been the subject of Amnesty activity in the last year. Nothing has been said of the Middle East, Iraq, Iran, Saudi Arabia, the U.A.R., Turkey, which could provide material for a section in themselves.
Annexe: Recent Developments
Recent press reports suggest that Portugal’s “liberal trend” is illusory. It is reported that in February 1970 police took into detention Dr Francisco Salgardo Senha, a respected opposition lawyer, the Security Police having stated that he is being detained “to establish his responsibility for disobedience of authority and his participation in the collective action designed to incite public opinion to promote the separation of the overseas territories from the mother-land”. It has further been reported that ten persons have been arrested, including a candidate in the October 1969 General Election and charged with crimes against State security.
The Greek Government is reported to have announced the intended release of 300 political prisoners. The release of the composer Theodorakis received wide publicity. Theodorakis attributed his release to “international moral protest”. The plight of Manolis Glezos was the subject of the following letter published in The Guardian on 30th March 1970
Sir - I would like to draw the attention of your readers to the plight of Manolis Glezos, a hero of the Greek resistance, who is now held in the concentration camp on Parheni on the Aegean island of Leros suffering from tuberculosis. He was recently on a seven-day hunger strike - as the last weapon - demanding the release of his fellow political prisoners.
In May 1941, at the age of 19, Glezos climbed the Acropolis and tore down the German swastika which had been hoisted on the Parthenon by the Nazis as they entered Athens. This heroic deed of Glezos won the hearts of all freedom-loving peoples and raised the flag of resistance to German tyranny. Arrested and sentenced to death, he escaped and joined the Green resistance in the mountains.
After the war, he was rearrested and in 1948 again sentenced to death. In response to world-wide protests the sentence was commuted to imprisonment for life. He was released in July, 1954, suffering from tuberculosis. In December, 1958, he was re-arrested and was released from prison only in 1963. He visited England the same year to thank his many friends for their efforts to release him. In London he was given a tumultuous welcome. The people of Athens elected him with a huge majority as their parliamentary representative. On April 21, 1967, he was arrested by the military junta. News from Athens indicates that his health is deteriorating rapidly.
As a lecturer on Greek affairs, I make a special appeal to all people of goodwill and especially to all philhellenes to use their influence to free this fine man and enable him to have the necessary medical treatment.”
The State halted the prosecution of twenty-two Africans under the Suppression of Communism Act. They were found not guilty but immediately re-detained under the Terrorism Act.
An urgent application was brought in the Pretoria Supreme Court on February 20th seeking action on behalf of the accused because they were “again at the mercy of interrogators”. Miss Madikizela, one of the applicants on behalf of the accused, stated that there was evidence by several witnesses that they had been made to stand for long periods without sleep. The statement of one of the detainees, Mrs. Rita Mdzanga, alleged that a white policeman had stood on a chair, picked her up by her hair and let her fall on a gas pipe. She alleged that she was beaten during the interrogation and when she screamed the windows were closed.
There have been widespread allegations of the torture of political prisoners. Two distinguished French lawyers, Louis Pettirti and Jean-Louis Weil, visited Brazil at the beginning of March on behalf of Amnesty International, the International Association of Democratic Lawyers, the International Secretariat of Catholic Lawyers and the International Federation for the rights of man. They reported that there were still almost 12,000 political prisoners in Brazil described by the government as “prisoners of war” with an average age of twenty-two. They reported in substance that the evidence of torture was irrefutable.
On the 25th March 1970 the Military Tribunal sentenced Dr Caio Prado, Brazil’s outstanding Marxist historian, to four and a half years imprisonment. His present prison sentence resulted from an interview with a student publication of the University of Sao Paulo in 1967. In addition to Dr Prado the Editors of the publication were sentenced to three years and four and a half years respectively. The interview concerned Dr Prado’s latest book “The Brazilian Revolution” published in 1966 and for which he was given the title of “Intellectual of the Year”. The charges of inciting to subversion of the political and social order were based mostly on one phrase - when asked about the means of establishing a socialist regime in Brazil Prado answered “We should not discuss the methods of the struggle, but start struggling”. Dr Prado was the leader of the Communist Group in the State Assembly of Sao Paulo from 1946 to 1948.
The Soviet Union:
Andrei Amalrik, the Russian who had recently published in the West the anti-Soviet book “Will the Soviet Union Survive until 1984?” was arrested in May and is now in prison. “He had been writing” he said “in patient expectation of further imprisonment” and he had been filling in his time “growing tomatoes and cucumbers”. A further quotation may explain his attitude. “It seems to me that no oppression can be effective without those who are willing to submit to it.” More recently the leading Biologist, Zhores Medvedev was arrested. For several years he had been complaining at the “senseless obstacles” imposed by the government to free scientific exchange with the West.
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Shortly after his arrest it was reported in the Press - on the 19th June 1970 - that “protests by fellow scientists and authors have led to the release yesterday from a Soviet mental clinic of Dr Zhores Medvedev, the Soviet biologist and geneticist.
He was seized at his home outside Moscow nearly three weeks ago and friends assumed it was because of an unpublished book he had written on Soviet barriers to international scientific co-operation.
A mass meeting a week ago of leading members of the Soviet Academy of Sciences confronted the Soviet Health Minister, Mr Petrovsky, and the psychiatrists who examined Dr Medvedev to demand his release.
* Antonio Amat has since been released from prison, and is reported to be under house arrest in Madrid.
This Essay, originally prepared in 1970, was intended as background to the problem of civil disobedience which then confronted Amnesty International.
Amnesty International’s mandate was “to work for the release of and provision of assistance to persons who in violation of the provisions of (the Universal Declaration of Human Rights) are imprisoned, detained or otherwise physically restricted by reason of their political, religious or other conscientiously held beliefs or by reason of their ethnic origin, sex, colour, or language, provided that they have not used or advocated violence”. During the 1960s as a result of the war in Vietnam, the civil rights movement, the struggles against colonialism and apartheid, many people refused to obey laws and claimed the right to break them on the ground they conscientiously believed them to be wrong.
Amnesty International was born in the cold war and its work had at the outset focussed upon the prisoner of conscience who was being physically restricted for his or her conscientiously held ‘beliefs’. Questions arose at the time this essay was written whether and to what extent the organisation should work to sustain those imprisoned for conscientious civil disobedience.
The 1960s was a decade of turbulent civil disorder. During the twentieth century there had been earlier movements of deliberate disobedience to achieve political change – the suffragettes in England and Ghandi’s non-violent resistance in South Africa and India. But the period between, say, 1955 when Rose Parkes refused to move herself into the non-white are of a Montgomery city bus until 1975 when the war in Vietnam ended, was one of unprecedented turmoil in the western democracies. Certain movements such as the demand for racial equality, the Campaign for Nuclear Disarmament and opposition to the ‘war’ fed off one another but the catalyst was undoubtedly the war.
Amnesty International was thrust into these issues of civil disobedience. I say ‘thrust into’ them, because imprisonment on political and religious grounds which led to the formation of Amnesty International was not related to civil disobedience. Its origins lay in the rigid political persecutions of the cold war. All of these new issues troubled us.
Civil disobedience is of two kinds. First is ‘the organized refusal to obey particular laws in order to secure political change by exerting direct pressure on the offending government’* Here there may be no objection to the particular law chosen to be disobeyed. Disobedience to the particular law is in this case only a means to some more general goal. Such disobedience may be violent or non-violent and take place in democratic or undemocratic societies. Second is the case where the law itself is objected to as a matter of conscience and disobedience to it is based upon that ground. Conscientious objection to conscription in a particular war or to war generally is of this kind.
Amnesty International works for persons detained on account of their “conscientiously held beliefs”. Does this mean that the only condition for acting on behalf of those engaged in civil disobedience was that they were conscientious irrespective of the kind of disobedience adopted?
One feature of the period was the rise of terrorism. In the early part of the century there had been much anarchist terrorism but between the assassination of the Archduke Ferdinand in July 1914 and that of President Kennedy in November 1963, the world had been relatively free of it. Terrorism in the 1960s was in some instances associated with clearly defined political aims such as those of the Palestinian Liberation Organization, which was formed in 1965, the provisional wing of the I.R.A., which sought a united Ireland or E.T.A., which sought a Basque homeland in Spain. But there were other groups, such as the Red Brigades in Italy or the Baader-Meinhof in Germany, whose aims were more amorphous. They seemed bent upon the destruction of industrial capitalism by terror and indiscriminate violence.
Amnesty International excluded those advocating violence from its mandate. It would thus not support members of these groups. But even in the area of violence we experienced difficulty. What about the freedom fighters opposing colonialist regimes such as France in Algeria? And what about the African National Congress led by Nelson Mandela in South Africa? The case of Mandela who came to trial in 1964 troubled us the most. There is no question that Mandela and the other Rivonia trialists planned sabotage and violence. And yet, after Sharpeville, what alternative did they have? From 1913 when the A.N.C. was formed until 1960, the A.N.C. had insisted upon non-violent means in its struggle for racial justice. At that time the only alternative to violence seemed to be the acceptance of perpetual servitude. Nevertheless, even in the case of Mandela, Amnesty adhered to its bar on violence and its vigorous representations on his behalf were confined to avoiding the death penalty.
Outside the area of violence problems both of principle and prudence multiplied. The position was simple enough where, as in the Soviet Union, or, say, Portugal, a person disobeyed a law prohibiting free speech and was imprisoned Such a law’s violation of an internationally recognized human right was clear. But what of laws regulating demonstrations? Here the law might be compatible with freedom of assembly. More often difficulties arose in the way the law was administered rather than in the law itself. Nevertheless, the vast anti-war demonstrations in the United States and in Australia needed some regulation to be consistent with public order.
During this period there were three areas of non-violent civil disobedience in the democracies: the negro protest against segregation and discrimination; the campaign for nuclear disarmament and the protest against the war in Vietnam.
Rose Parkes’ refusal to give up her seat in the white area of the bus led to a boycott of the Montgomery City Transport service. Protesters were harassed by the police. Churches were bombed. This was the start of the civil rights movement. Non-violence was central. The wave of non-violent disobedience began with the lunch counter ‘sit-ins’ at Greensboro in February 1960. Martin Luther King announced a mass protest in Birmingham, Alabama. The demonstration involved orderly marches, the boycott of segregationist merchants, ‘knee ins’ at churches, ‘sit ins’ at libraries and so on. The gaols were filled with blacks arrested for ‘parading without a permit’. King himself was gaoled. From here he wrote his famous ‘Letter from Birmingham Gaol’. Throughout the long campaign that followed he was relentlessly non-violent.
In this case civil disobedience presented no great difficulty, for three reasons: the object, racial equality, was a recognized human right; the means adopted was non-violent and, most importantly, the American negro was at that time effectively denied the vote and thereby shut out of the democratic process.
The opposition to nuclear disarmament posed more serious difficulties of principle. Here the disobedience was non-violent. There was however no intrinsic reason why the aims of the movement were not attainable through the democratic process. Bertrand Russell sought to justify the civil disobedience of the movement by saying that ‘the master organs of publicity feel themselves part of the establishment and are very reluctant to take a course which the establishment will frown on. Long and frustrating experiences proved to those among us who have endeavoured to make unpleasant facts known, that orthodox methods are insufficient.”
It was however the war which produced most difficulty for us. Hostility to it mounted in intensity. Many like Joan Baez folk-singer and founder of the Institute of Non-violence, refused to pay taxes to what she described as the ‘warfare State’. Conscription caused the deepest emotions and it was around conscription that the most complex issues of principle arose. Never before in Western history – and this is perhaps the historical significance to it of Vietnam – had such a substantial portion of a people opposed participation in a war in which their government was engaged. It was beside the point whether the opposition was a majority or minority.
In Australia the conscientious objection provisions of the National Service Act did not extend exemption to a ‘particular war’ objection. To be exempt one had to object to participating in war per se. The objection to the war on moral grounds was widespread. Dr Cairns in the Labor Party, the Premier of South Australia, journalists and even headmasters called upon youth not to register for national service.
This is the background to the essay written in July 1970. Except to correct the grammar and to improve expression here and there, I have not altered the text. I have however appended an afterword commenting upon the issues from the perspective of the 1990s.
The conflict between individual conscience and the claims of the state are very old. It was the theme of Antigone written by Sophocles in about 441 B.C. Creon said that “whomsoever the city-state may appoint that man must be obeyed, on little things and on great, in things just and unjust”. To which Antigone rejoined, “I did not believe that your proclamations were of such force that a mortal could override the unwritten and unfailing laws of heaven”.
But the claims of Creon cannot easily be dismissed.
Law is indispensable to civilized society. The observance of rules imposed by the State is a guarantee of order and predictability which enables individuals composing society to go about their lives freely. It is this simple platitude and the truth it embodies which justifies the claim by the State to our obedience.
The importance of law rests not merely upon the elimination of actual violence and aggression in the community but upon the feeling of security that each citizen has that violation of the law will not occur. When Hobbes wrote that without the State men are “in that condition which is called warre” he was not referring to actual violence for he said “the nature of warre consisteth not in actual fighting; but in the known disposition thereto, during all the time there is no assurance to the contrary. All other time is peace”. It is not sufficient there be no violence: there must be “an assurance to the contrary”. Such a feeling of security can only exist where there is reasonable certainty the law will be obeyed. For the most part this situation prevails in ordinary times in most societies. We have come to assume the existence of order in the community and are apt to forget the long history of the blood feud and quasi-private remedies before the Queen’s Peace established it. We take the existence of a police force for granted and can barely imagine the chaotic state of law enforcement in the United Kingdom at the end of the eighteenth century. Yet as late as 1828 Sir Robert Peel could tell the House of Commons that in London one in every twenty two was a criminal and that lawbreaking throughout England was ‘without parallel in the annals of any civilised country’. It is only in the case of some violent upheaval – a Detroit, a Newark or a Chicago – that we become aware of the possibility of a complete breakdown in the order prevailing in society.
We assume that law and order will continue largely because obedience to law has become a habit and we assume that the same will apply to the overwhelming majority of one’s fellow citizens. This habit of obedience is very necessary. In any society there would be immediate and complete breakdown if the law had to be enforced actively and continually by police, law courts, prison authorities etc. Where there is no habit of obedience, neither the size of the police force nor the severity of sentences would be sufficient. Gaols would be flooded. Where respect for law is lacking below a certain level the habit of observance never chrystallises. Fear of the State and its sanctions are the only deterrent. Eventually in such a case there is a breakdown. That is what occurred under the ‘bloody code’ in England in the early nineteenth century where juries refused to convict in the clearest case because of the severity of the punishment and poachers would murder to escape apprehension. Prohibition during the era of ‘Al Capone’ is a more recent example. The law cannot rely solely upon the threat of sanctions. There must be some respect for the law within the society if there is to be that degree of observance of legality which is socially essential.
It is on grounds such as these that the State claims the right to insist upon obedience. Also, our feeling of security is not merely the result of anticipated observance of the laws by citizens but by the State itself. The State has also become subject to law. We sleep more easily because the police are subject to private entry and arrest procedures, and conviction can only be obtained after a ‘fair trial’.
It is clear that disobedience to law at a certain level threatens these assumptions. Nevertheless, when all has been said in favour of ‘law’ it has no absolute claim to our obedience. Thomas More refusing to take the oath to the Act of Supremacy, Hampden refusing to pay Ship money, Milton the book licensing laws, Ghandi breaking the salt laws and Martin Luther King disregarding the injunction in Alabama, excite admiration not criticism. And those who have seen Abby Mann’s ‘Judgement at Nuremberg’ recognise that, although the Judges of the Nazi Courts had acted legally, they had nonetheless committed ‘crimes’. Treason, the supreme rejection of national law, may well be commendable, as in the case of von Stauffenberg’s 20th July 1944 attempt on the life of Hitler.
It is only moral upheavals such as occurred in Germany that the immorality of extreme obedience to law can be recognised. A case before the German Court of Appeal in 1949 illustrates when obedience to law has become ethically repugnant.
In 1944 a woman wishing to be rid of her husband denounced him to the authorities for insulting remarks he made about Hitler while at home on leave. The wife was under no legal duty to report his remarks but what the husband said constituted a clear criminal offence under Nazi statutes. The husband was arrested and sentenced to death. He was not executed but was imprisoned and then sent to the front. In 1949 the wife was prosecuted in a West German court for illegally causing a person to be deprived of their freedom. The wife pleaded that what she had done was lawful at the time it was done, as it undoubtedly was. Nevertheless the Court of Appeal upheld her conviction since the Nazi statute was ‘contrary to the sound conscience and sense of justice of all decent human beings’.
Those who assert the right to civil disobedience often claim that the only obligation is to obey a just law.
When in 1960 Patrick Duncan was charged in Capetown with seditious libel, he relied upon this. In the course of his address to the Regional Court he said, ‘For the civilizations of Greece and Rome, the traditions of Christianity, both catholic and reformed, on which the whole of our culture is based, proclaim unanimously that an unjust law is no true law and cannot bind the conscience of the subject, and that the subject has no duty to obey such a ‘law’.
Henry David Thoreau’s essay on ‘Civil Disobedience’ first delivered as a lecture before Concord Lyceum in January 1848 was intended to justify his refusal to pay State taxes. His refusal commenced in 1842 and culminated in his arrest and confinement to the County Gaol in Concord in July 1846. In the course of the essay he wrote: “Must the citizen defer for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience? I think that we should be men first and subjects afterwards. It is not desirable to cultivate a respect for law so much as for the right. The only obligation that I have the right to assume, is to do at any time what I think is right.”
Martin Luther King was greatly influenced by Thoreau’s essay which he read whilst at Morehouse College. In his Letter from Birmingham gaol, which he sent to a group of leading clergymen in April 1963, he wrote that “one may well ask how you can advocate breaking some laws and obeying others? The answer is found in the fact that there are two types of law. There are just and there are unjust laws. I would agree with St Augustine that an unjust law is no law at all. Now what is the difference between the two? How does one determine whether law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a human code out of harmony with the moral law. To put it in the terms of St Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust”. The difficulty which Martin Luther King experienced in defining the difference between just and unjust laws in more precise terms than through the use of those terms themselves, illustrates a continuing difficulty in describing the relationship between law and justice.
Justice is a supreme value but how to give it objective application in a way that is uniformly agreed? The justice or otherwise of a law can be a matter of deeply differing opinion. The opening sentence in Justinian’s Institutes is that ‘justice is the set and constant purpose which gives to every man his due’. But what is a man’s due? Moreover, the quintessence of law is certainty. Generality and uniformity are necessary if law is to provide a framework of order. This need is illustrated by laws which are ethically senseless such as the rule of the correct side of the road – it being immaterial which side it is so long as it is uniformly observed. It is this characteristic of law, intrinsic to it, which collides with the requirements of individualised justice.
The difficulty in Thoreau’s thesis is apparent. He does not formulate any criterion, but leaves it to each individual to determine whether the law is just and whether he or she ought to obey it. ‘The only obligation… is to do at any time what I think is right’ is a proposition which negates law for it denies its essential qualities, uniformity and universality. It may be that the recluse of Walden could comfortably say ‘that government is best which governs not at all’ but Amnesty International must work out its position on the assumption not only that government exists but that it is necessary.
This does not by any means dispose of the problem of civil disobedience, but it can be said that Thoreau’s thesis that each person is the absolute arbiter of the justice of a particular law and, in consequence, may choose to disobey it – cannot be the basis for Amnesty International’s action.
At this point a separate matter should be disposed of. Amnesty does not have any corporate view on personal ethics. And so, in refusing to support civil disobedience on Thoreau’s ground of conscience, it is not making a judgement on the personal ethics of the objector.
Personal ethics operate at a different level of judgement. For example, one may maintain that sincere motivation is the sole criterion of ethical virtue. Clearly, on such a view, the civil disobedient would be beyond moral criticism. Amnesty International is concerned not with this but with the authority of the State.
Democracy evolved to resolve the kind of problem we have been discussing – what gives the State authority to coerce? Or, more precisely, what gives the State legitimacy to coerce? One such ground is where the citizen has consented to the State having that authority.
In the Crito, Socrates affirmed in the face of death the duty to obey law (even though the particular law under which he had been sentenced was unjust) because there was, as he said, ‘an agreement between us to abide by the decisions the City gave’.
In fifth century B.C. Athens, when only two or three thousand attended the Ekklesia and from where it was relatively easy to move to a nearby City State – Thebes or Megara – it may have been accurate to speak of ‘agreement’ in the strict sense. The size of the modern nation State prevents that. Nevertheless, it is this element of consent which lies at the heart of the democratic State’s moral claim to obedience.
Lindsay in ‘The Essentials of Democracy’ describes the fascinating debate held at the Grand Council of Officers at Putney on the 25th October 1647 to consider a Remonstrance of the Army. The papers of this Council meeting have survived. Cromwell and Ireton were present. Ireton defended the property qualification of the franchise. Colonel Rainboro rejoined, “Really I think the poorest he that is in England hath a life as the richest he”. From this he draws the conclusion, “therefore truly, I think, Sir, it is clear that to live under a government man ought first by his own consent to put himself under that government and I do think that the poorest man in England is not at all bound in a strict sense to that government that he hath not had a voice to put himself under”. And he added later, “Every man born in England cannot, ought not, neither by the law of God or the law of nature, to be exempted from the choice of those who are to make laws for him to live under and for ought I know to lose his life under.” A certain Mr Widlam, also present at the debate, said, “I conceive that the undeniable maxim of government is that all government is in the free assent of the people. If so, then upon that account there is no person that is under a just government or hath justly his own, unless he by his free consent be put under that government.”
Ireton replied by saying, “When I do hear men speak of laying aside all engagements to consider only that wild or vast notion of what in every man’s conception is just or unjust, I am afraid that I tremble at the boundless and endless consequences of it”.
All that democracy can do is enable every citizen to participate in the decision-making process. As Lindsay commented, “What matters is not that the final decision of governments should be assented to by everyone but that everyone should somehow have made his contribution to that decision”. Accordingly, the right of every citizen to vote at elections, to express his views freely, to assemble in order to secure the adoption of his views are the means by which democracy allows persons to participate in the law making process and provides the foundation for the State’s claim to their obedience. Obedience is claimed and enforced because within practical limits the democratic State permits each citizen to take part in the making of the laws which are to bind them.
As will become evident, this democratic theory based upon assent to law by a representative majority, would not invariably justify a claim to obedience to the law. But, at this point, a negative proposition has been established. Amnesty International would be justified in intervening to protest at imprisonment for civil disobedience if participation by the people in the law making process is denied to that people or a section of it. In South Africa and Rhodesia, law is made and imposed by minority. Stated generally, the State in these countries has no moral claim to the obedience of its African citizens.
The central difficulty in democratic theory is that the choice of majority decision as governing is not based on grounds of principle but convenience. It is the only practical means by which an issue can be resolved within a community. It is not because weight of numbers connotes wisdom. Ultimately the problem of obedience to law in a democracy is that the ‘majority’ in itself constitutes an inadequate moral criterion.
First, there is the case of the ‘fictitious majority’. A typical instance is that of negroes in the South before the recent voting legislation. After the withdrawal of federal troops in 1877 negroes were effectively disenfranchised by voting laws which introduced tax, property, residence and educational qualifications. This particular case does not invalidate democratic theory. It is simply not a case of a true majority.
What however is the position where there is a true majority deliberately penalising an identifiable minority? This might be described as the case of the mala fide majority. Northern Ireland is such a case. In Northern Ireland over 60% of the population who are mostly protestants favour unity with the United Kingdom. The remainder of the population are catholic and for the most part favour union with the Republic of Ireland. The dominant political power of the protestant majority has enabled them to discriminate against the Catholic minority. The voting rights for local government elections, allocation of housing and the operation of the Special Powers Act 1922 are all instances where the majority is deliberately setting about controlling the minority.
The fictitious or ‘mala fide’ majority is a clear case where Amnesty could regard civil disobedience by the victimised minority as justified.
The case of the mala fide majority is where the majority uses its entrenched power to oppress a minority, but aside from that case, majority laws may be unjust. Majority rule, whilst ordinarily sufficient to entitle the State to obedience in accordance with the democratic principles we have described, is subject to certain ultimate principles which no law can infringe. It would be irrelevant if the Nuremberg laws depriving the Jews of German citizenship and rights, had been enacted by a representative assembly. Many aspects of apartheid legislation in South Africa could not claim obedience by the African even had they been made by a majority.
To an extent then the original problem remains. The individual cannot be the absolute arbiter of what laws are just and what laws are unjust but there are certain principles of justice so fundamental that the State, even a democratically elected State, cannot be conceded the right to depart from them.
This is the true meaning of the Nuremberg doctrine. It does not mean – as has been commonly asserted in recent discussion – that a law deemed unjust by the individual may be disobeyed. The Nuremberg trials, which arose out of the London Agreement of August 8th 1945 established the Tribunal and defined crimes of war and crimes against humanity to include murder, extermination, enslavement, deportation etc. In effect what it said was that there were certain laws, permitting ‘crimes’ against humanity, which needed not be obeyed and, indeed, must not be obeyed.
The question then is what are these fundamental principles of justice which Amnesty International can rely upon to override the claims to obedience, even by the democratic State.
This brings one to natural law. Natural law has, from the time of the Greeks, been the most persistent attempt to relate justice to law. Nevertheless, it has hardly been successful in establishing agreed principles. The Church appeals to natural law to assert the significance of the family and the right of private property. In 1850, in the United States, when the law against fugitive slaves was enforced, many regarded that as a criminal attempt against the right of ownership. Legalised abortion is seen by some as an infringement of the natural law prescription of the right to life. Capital punishment is not. Natural law was relied upon in the eighteenth century to justify freedom of speech in almost absolute terms, whilst ecclesiastical authorities who also espoused natural law warned of ‘the excesses of an unbridled intellect’.
Julius Stone explained the basic difference in ‘The Province and Function of Law’. Conservative natural law ‘tends to assimilate the rational idea of institutions to actual institutions existing at the time, as Aquinas sought to show that reason dictated the existing authority of the Church’, whilst, revolutionary natural law ‘tends to assimilate actual institutions to a rational ideal of what those institutions ought to be’.
In these circumstances, I suggest, an organization like Amnesty International could only rely upon international agreement or universal practice to establish fundamental or natural law principles to justify civil disobedience to law in a democracy. The only such instrument today* which qualifies is the Universal Declaration of Human Rights. This embodies principles agreed by a substantial body of humanity and may serve as a guide.
The position then can be summed up in the following propositions:-
· Amnesty International should not support a civil disobedient acting conscientiously merely upon the basis that the law infringed was believed to be unjust;
· If a society does not meet the requirements of freedom of speech and/or does not allow its citizens to participate in the political process in accordance with accepted democratic procedures, a citizen disobeying the laws of that society ought to receive Amnesty’s support;
· If a society does allow the ordinary democratic processes of popular involvement, Amnesty ought not to support a conscientious disobedient unless he belongs to a minority which is subject to discrimination or the law in question violates a fundamental right as expressed in the Universal Declaration of Human Rights.
The main objection which might be made to this analysis is that it presupposes parliamentary democracy in the twentieth century allows sufficient participation in the making of laws to justify the State’s claim to obedience.
Herbert Marcuse asserts that the democratic State does not allow its members to participate in the political decision-making process and the idea that it does is, in his opinion, a carefully fostered illusion.
The common element in the views of Marcuse and those presently attacking the democratic State is the contention that all political and economic relationships are dominated by a class or interest group.
There are a number of reasons why Amnesty International cannot pause to examine the validity of these contentions. At bottom however it is because if the organisation is to carry conviction in its criticisms of sovereign States it will only be because a State is departing from standards universally acknowledged by the international community. Amnesty International’s role would inevitably be jeopardised if it were to contend that disobedience was justified where the grounds of disobedience, no matter how genuine, were not a departure from those accepted standards.
The question is whether I hold the same views as those expressed above thirty years later.
First, it seems to me that the rejection of the use of violence by Amnesty International even where it is conscientious and subjectively justifiable, remains correct. Although the right of resistance to a tyrannical regime and the use of force for that purpose is admitted, the consequences of the use of force are so serious and the difficulty in determining when it is justifiable so substantial, that no qualification should be made to the principle Amnesty has adopted.
It also seems to me right to have accepted the democratic principle as an adequate process to legitimise law and power. To do so inevitably means allowing a minority to be legally compelled to obey a law it conscientiously opposes. The general objection of the New Left philosophers that majoritarian democracy is a façade goes too far. It is true that there are formidable forces seeking to ‘manufacture consent’, in Chomsky’s phrase, and that despite a modicum of diversity, the interests of the media are sufficiently uniform to dominate opinion. Nevertheless, over a vast range of issues the system does allow the individual to participate in the decision making process insofar as that is realistic.
I would reaffirm the exception to the claim to obedience even by a democratic State where its laws offend natural law. A law made by a genuinely representative majority may be so repugnant to natural law that disobedience is justified.
I drew attention in the essay as to how those principles are to be ascertained and to the very divergent views throughout history as to what constitutes natural law.
I suggested that the Universal Declaration of Human Rights (1948) could supply universally accepted principles. It may be at this point the 1970 essay is most open to criticism. The Universal Declaration of Human Rights was universal but not obligatory. Its provisions were, it might be claimed, too general upon which to construct an identifiable body of natural law.
What has happened since 1948 represents the greatest change. Binding human rights instruments have been signed and ratified by most of the world’s nations. Modern international humanitarian and human rights law has developed greatly and may be likened to the ius gentium of Roman law from which the content of natural law was originally derived.
Perhaps the modern concept of the ‘crime against humanity’ in international law, mentioned in the 1970 text, best conveys the natural law idea. First expressed in the Martens clause of the fourth Hague Convention in 1907 it was given impetus by the London Agreement of 1944 which established the Nuremberg Tribunal and also by the judgements of that Tribunal. Article 6 conferred jurisdiction on the Tribunal respecting crimes against peace; war crimes and crimes against humanity. The latter included “extermination, enslavement, deportation and other inhumane acts… or persecution on political, racial or religious grounds.”
Gradually these norms have been clarified and internationalised. In part the development of the concept was due to conventions such as the Genocide Convention and the Convention against Torture. But it was also because individual crimes against humanity became embodied in customary international law. In the Barcelona Traction case the International Court of Justice ruled that these customary international law “obligations derive from the principle… concerning the basic right of the human person, including protection from slavery and racial discrimination.” Both genocide and torture are, independently of Conventions, crimes under customary international law.
The jurisdiction relating to these offences is universal. State sovereignty is no defence (Pinochet); individuals as well as the State are bound – ‘crimes are committed by men not abstract entities’ (Nuremberg Tribunal) and superior orders are no defence (the Nuremberg Charter). All of these characteristics show a recognition that these comparatively new international offences are indeed crimes against humanity but none more so that then absence of a defence of superior orders. It means not only that the national law might be disobeyed when inconsistent with these norms but must be.
Crimes against humanity are thus one category of modern natural law, the essence of which is that certain principles based upon the universal conscience of humanity overreach positive law in any of its forms or in any circumstances. The same can be said of war crimes in the area of armed conflict.
I mentioned that since 1948 binding instruments on human rights have been entered into and constitute a corpus of human rights law embodied in conventions such as the international covenants for political and economic rights.
It would be quite wrong though to suggest that the entire range of rights established by these instruments form part of a modern natural law and thereby justify disobedience to any national law which contradicts them or is conscientiously believed to contradict them.
This is so for a number of reasons. The exercise of many of the rights specified in the international covenants is contingent upon circumstances and, in particular, no obligation will arise if the circumstances are beyond the capacity of government. The right to a fair wage or to a free education depends upon the existence of economic conditions in the nation to enable it to be carried out. In effect the obligation in each instance is only an obligation on the State to use its best endeavours to achieve the goal specified.
The exercise of other rights depends upon circumstance. The human rights instruments allow democratic governments to determine the existence or absence of those circumstances as for example that ‘an emergency threatens the life of the nation’ or that some departure from the terms of the instruments is ‘necessary in a democratic society’.
Further, it is of the essence of ‘rights’ that their exercise may be forgone by the person entitled to the right.
Rights of this character, which may be described as ‘true rights’, do not give rise to obligations or duties falling within modern natural law.
It is only where the duties imposed upon States by these human rights instruments are absolute or near-absolute that they will fall within a modern natural law justifying disobedience to national laws violating them. Such duties will exist even where the person benefiting from them does not require their performance. Slavery cannot be consented to. The Torture Convention provides ‘that no exceptional circumstances whatsoever may be invoked as justification for torture’.
The duties arising from the so-called non-derogable rights in the international covenant on civil and political rights fall within natural law. Unlike the derogable rights in which a State can exclude its obligation by declaring an emergency, the rights relating to life, torture, medical experimentation without consent, freedom of conscience and belief, persecution on grounds of race or religion and cruel and degrading punishments cannot be derogated from in an emergency.
The reason these duties are absolute is that their observance derives from the nature of the human person and, as a matter of universal conscience, cannot be departed from by any State. Their foundation is the same as that of the ‘crimes against humanity’. The basis does not materially differ from that of the old stoic law of nature.
What then of conscription about which the 1970 debate started? Conscription is not proscribed by the human rights instruments. Nevertheless, the practice of States of according exemption to those objecting on grounds of conscience to participating in war generally, is now very widespread although not universal. The concept of natural law is not static. It would, I suggest, offend modern principles of natural law to compel such objectors to take part in war. Nevertheless, it could not be said at this time that objection only to a particular war engaged in by a democratically elected government would be justified under those universal principles and so justify Amnesty International’s intervention. In such a case the democratic principle would prevail.
John Greenwell 1970-1999