An Irish lawyer’s journey from Malawi to The Hague

A Malawi-born Irishman is representing victims of the 2008 Kenyan massacres at the ICC in The Hague

Lawyer Fergal Gaynor, who appeared in the International Criminal Court on behalf of the victims of the violence which swept Kenya after the 2008 elections. Photograph: Clara Sanchiz

Lawyer Fergal Gaynor, who appeared in the International Criminal Court on behalf of the victims of the violence which swept Kenya after the 2008 elections. Photograph: Clara Sanchiz

Mon, Feb 24, 2014, 01:10

“When a machete lands on a human head, it can take many blows to kill . . .” Those were the first words of lawyer Fergal Gaynor when he rose last week to address three judges of the International Criminal Court (ICC) in the businesslike surroundings of a courtroom in The Hague.

Gaynor was appearing on behalf of the victims of a wave of unimaginably ugly post-election violence which swept Kenya in 2008, leaving at least 1,200 people dead, thousands more horribly injured and disfigured, and another 500,000, including whole families, displaced and traumatised, many beyond recovery.

Kenya’s president, Uhuru Kenyatta – son of the country’s founding father, Jomo Kenyatta, and its richest man, with a personal fortune of some $500 million – denies five counts of crimes against humanity, including murder, rape and persecution, for allegedly orchestrating that vicious ethnic bloodletting.

As their lawyer, Gaynor knows the story of those victims intimately. Born in Malawi in 1971, he feels every bit as at home in Africa as in Ireland – which his father, Frank, first left in 1963 to teach in a school run by the Kiltegan Fathers in the White Highlands of Kenya.

“I went back there with my dad and my mum, Monica, last year, on a kind of 50th anniversary road trip. We visited the school where he used to teach. I was amazed to see a photo of skinny young Frank Gaynor on a motorbike in Nakuru in the beautiful Rift Valley . . .

“It wasn’t the picture itself that amazed me. It was the fact that Nakuru saw some of the most awful mob violence of 2008 and forms a huge part of the case I’m appearing in at the ICC. And of course I live in Nairobi now. It’s all pure coincidence, but yes, it is ridiculously unlikely.”

It is that background which inevitably informs Gaynor’s handling of the Kenya victims’ case, so that when he goes on to tell the judges about Victim 9309, the man attacked with the machete, “part of whose skull appeared to be hanging on by a miracle” and whose wife was gang-raped, doused in paraffin and set alight, but still survived, he is telling a tale of people he knows as neighbours.

“As a lawyer, you’ve got to strike a balance between being empathetic enough to understand the agony these people have endured – the abyss into which they were thrown and from which they are still struggling to emerge – and on the other hand, not getting too involved.

“Because there’s no doubt about it, if you want to take on board the full extent of the suffering of everyone you meet in this business, you are not going to be able to do your job. You have got to shut off your feelings quite ruthlessly every now and then.”

What often strikes him, he says, is the difference between criminal justice in a country such as Ireland and criminal justice on the international stage, at the ICC or the International Criminal Tribunal for the Former Yugoslavia, or the equivalent tribunal for Rwanda, at both of which he has also worked.

“I believe criminal justice in Ireland is 90 per cent a social justice issue, dealing with 19-year-olds who have grown up in urban wastelands in very difficult circumstances.

“International criminal justice, in my experience, is very different. The Bosnian- Serb leaders, for example, were highly educated. Kenyatta comes from probably the richest family in Kenya and went to Amherst, the exclusive liberal arts college in Massachusetts. The people being prosecuted often come from very powerful backgrounds and regularly stand accused of abusing that power, using it against their own powerless citizens with very catastrophic consequences.

“So I am not cynical at all about the big picture. I am a complete supporter of this kind of international justice system and I believe it has got to continue.”

For a man who never intended to become a practising lawyer, Gaynor’s career trajectory has been impressive – if not always direct or strictly according to the book.

Farming backgrounds
Both his parents come from farming backgrounds in Co Westmeath – “in the case of my father’s family, not much more than subsistence”. With his father a teacher, there was a strong emphasis on education in the Gaynor household. So while his parents lived in Swaziland in the early Eighties, he was sent home to boarding school in Clongowes Wood in Co Kildare.

That, he recalls, was where he first felt out of place. “I went to a mixed primary school in Swaziland. Almost everyone was black. The weather was beautiful. Life revolved around barbecues and jumping into swimming pools, with a very gentle family life at home.

“Then suddenly I was in this enormous school, knowing nobody, it was absolutely freezing and discipline was, let’s say, “enhanced”. Culturally I wasn’t much better off: I didn’t know the pop songs or the TV programmes, and worse still I had a strange accent. But slowly it got better and I got to know people.”

Clongowes led to a law degree at Trinity College Dublin. Trinity led to a year travelling around Italy. Instead of an LLM, Gaynor took a master’s in international relations at Cambridge.

There followed a graduate training programme at international law firm Freshfields, in London, including six months in Japan and a year on secondment to the Bank of England.

Finally, “after sending off application after application and getting nowhere”, Gaynor made it to the International Criminal Tribunal for the Former Yugoslavia (ICTY), drafting and researching for legendary US prosecutor and now judge, Mark Harmon.

He has made one valiant attempt to, as he puts it, “go back to Ireland and live a normal life”. That was in 2008 when – having worked with the tribunal for the former Yugoslavia, then spending six months in Beirut working on the UN’s Rafic Hariri assassination investigation, before moving to the International Criminal Tribunal for Rwanda – he decided to return to the Four Courts to devil as a barrister.

“There I was, at the age of 37, with 10 years of hard-earned experience in complex commercial law in London and international criminal law in The Hague, Lebanon and Rwanda, essentially working as a dogsbody, which, as everyone knows, is what happens. I found the whole experience a little difficult to handle, to put it mildly.”

Bruised ego
Having survived with nothing worse than a bruised ego, it was the economy in the end that made him reconsider a future in Ireland. “I couldn’t make any money out if it and I knew I wasn’t going to”, he says candidly. “The economy was going off a cliff, the legal aid budget was being cut and there was a massive over-supply of barristers. It can be a lovely lifestyle, but this was all about finance, not the law.”

Nowadays, it is all about the law again. “To me, the biggest injustice at the moment is that [Russian president Vladimir] Putin will veto any Chapter 7 resolution at the UN Security Council referring Syria to the ICC and as a result [Syrian president Bashar al-] Assad may never go on trial. That is the biggest disgrace.”

Does this mean that international justice is more a fig leaf than a system?

“It’s somewhere between a fig leaf and a system. It’s imperfect, there’s no doubt about that, but it’s certainly better than nothing.”

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