WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
June 11 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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Evil then and evil now

Evil then and evil now

Pic: Patrick Maguire
Red Cell: Patrick Maguire from Proof magazine, issue 4

In 1965, watching the trial of Adolf Eichmann in Jerusalem, Hannah Arendt observed the banality of evil.  Eichmann seemed not a tyrant, but a bureaucrat.  The figure who pled ignorance to the abhorrent nature of his actions was timid and withdrawn before a courtroom of people he helped decimate and hoped to eradicate.  In her imagination, someone who ordered the torture, persecution and death of hundreds of thousands of Jews and other ‘undesirables’ should be terrifying and repugnant, a villain whose immorality is almost palpable. The inhumanity of their person should help explain the inhumanity of their acts.  Eichmann, to Arendt’s surprise, seemed almost ordinary.

Even so, Eichmann, a key architect of the Final Solution, was not an ordinary man.  His bureaucratic skin concealed an abhorrent inner world.  But most evil is not like Eichmann’s. Most of it is as ordinary as it first appears. Atrocities, those crimes against humanity that force bile to rise in your throat, are rare.  Even among people who participate in monstrous events like the Holocaust, not all are fully evil.  It is among this group where the banality of evil is found.  These people act not out of a deep-seated desire to inflict harm, but with indifference as to whether their victims suffer or not.  Instead, they act because they are ordered to, or because it is what ‘the law’ commands.  This does not exculpate them, or mean their acts are not evil, but does mean that their culpability and moral guilt is diminished.

Much as there are degrees of culpability, there are degrees of evil.  In the case of Eichmann, his crimes against humanity were at evil’s nadir.  There are few tragedies in human history equal to the Holocaust.  Such tragedies, however, are not where evil begins, but where it ends.  Not every government policy must be at the level of the Final Solution to be evil.  The United States continues execute men in barbaric ways, while Canada has recently extended the right to assisted suicide to those struggling with depression, who decide they can no longer cope with life.  And in the UK, the government is determined to send those who seek refuge here to Rwanda, an authoritarian country recovering from civil war.  This, the Supreme Court ruled, is immoral and unlawful.

Anyone who reads and engages with the Supreme Court’s judgment striking this down should be outraged by the policy, not by the Supreme Court’s intervention.  Lord Reed – a justice not known for his willingness to hold the government’s feet to the fire – noted that Rwanda has starved refugees and used live ammunition on them, has sent them clandestinely to countries like Uganda where they could be refouled, and has refused refuge to asylum seekers from war zones like Syria and Afghanistan.

There is nothing that requires, let alone that justifies, treating refugees in this way.  Rwanda may be war-torn and impoverished, but it still has agency.  It chooses to use this agency to inflict harm and suffering.  But if Rwanda’s government is culpable, Britain’s is too.  Knowing that Kagame’s government was authoritarian and repressive, with the British Foreign Office condemning its abuses of power in 2021, Suella Braverman, then Home Secretary, chose to sign a ‘memorandum of understanding’ with the regime.  In exchange for £140m upfront, and a £100,000 fee for every asylum seeker taken, Kagame was willing to take Britain’s ‘undesirables’ off the government’s hands.

Key to this deal was Rwanda’s track record.  The fact that it tortured, persecuted, and refouled asylum seekers  was not a bug in the policy, but the point of the policy.  Braverman hoped that asylum seekers looking at Britain from camps in Calais, or thinking of Britain as they washed up on a Mediterranean shore would remember Rwanda, and the odds of ending up back where they started – or somewhere worse.  Choosing whether to stick with where they were or twist and aim for Britain, the hope was that they would stick.  If the Home Office had somehow contrived a deal with a developed country or a country with a strong human rights record – say, Canada – the policy would have been neutralised.  Asylum seekers would have considered it a win-win.

Throughout the Supreme Court’s judgment, the justices make their contempt for the policy clear.  Chastising the High Court for disregarding the evidence of the UNHCR, the UN’s refugee agency, Lord Reed and Lord Burnett-Jones ruled that Rwanda is an unsafe country, ill-equipped to house asylum seekers, let alone to decide their fate.  Part of this may have been because the memorandum failed to offer any substantive mechanisms protecting refugees’ rights – trusting that money would be enough to keep Rwanda in line – but also because Rwanda could not be trusted.  The Foreign Office official who gave evidence may have wanted to believe that Rwanda was a trustworthy ally who would fulfil their promises, but the Court preferred the hard evidence it read over an official’s optimistic supposition.  Everything before the Court suggested that Rwanda would, intentionally or not, subject asylum seekers to cruel treatment, ignoring and violating fundamental rights.

In response to this judgment, the government has doubled down on the policy, sinking deeper into iniquity. An objective tribunal – one that has not been willing to give it the benefit of the doubt on other morally flawed policies – has reviewed the policy and found it illegal and unethical.  But even this is not enough for the government to accept it’s the end of the road.   Some ministers and MPs, including Lee Anderson, the Conservative Party’s deputy chairman, want to ignore the judgment, with Anderson calling for planes to take off the evening the judgment came down.  Aside from the immorality, this would be the act of an authoritarian government, not a democratic one.  Any legitimate government would reject these calls.  But Sunak’s is validating them.  It claims to be preparing ’emergency’ legislation to clarify that Rwanda is safe.  Over the course of the last thirteen years of Tory rule, we have seen questionable acts of parliament and dubious executive decisions.  But up until now, Parliament has never legislated for people to reject the evidence of their eyes and ears.

Sunak and Braverman cower behind ‘the people’ in pursuing this policy.  Unwilling or unable to acknowledge that it is their cruel nature that is pushing it forward, they claim that it is what the people want.  Sunak’s government is currently polling at 22%.  Anyone who lines up in defence of this policy, and defends parliament’s right to pass legislating contradicting the Supreme Court’s findings of fact, is on some level, evil.  It was a disgusting policy from the beginning, and whatever doubt people may have had about it at the outset should have been washed away by the Supreme Court’s ruling.   Suggesting that the solution to the rising refugee crisis is to leave every human rights instrument, whether the European Convention on Human Rights or the Refugee Convention, is inhumane.  So is this government.

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