Ben Emmerson

British lawyer specialised in human rights

Ben Emmerson

The lawyer defending exiled and jailed Catalan leaders before the UN gives his take on the political situation

“Madrid has a narrow window of opportunity to make a move” “An orderly transition is less likely as time passes”

Lawyer Ben Emmerson (Kent, United Kingdom, 1963) is in charge of the international defence of Catalan President Carles Puigdemont and the political prisoners before the UN’s Human Rights Committee. He spoke with our sister publication La República before participating in the acts of the Catalan National Day.

This is a National Day with political prisoners and exiles...
It’s a crucial time for the Catalan independence movement. I think this National Day is a demonstration of the great strength the Catalans have. There are two challenges on the table at the moment: creating an independent republic, and obtaining the immediate freedom of the political prisoners. It’s only a personal opinion, but if Pedro Sánchez’ government doesn’t move quickly and enter into negotiations to ensure the impending release of the prisoners, Catalonia may get its independence much sooner than anyone expects.
Do you think negotiations with the Spanish government could start soon?
My view is that substantial negotiations are unlikely to begin before the political prisoners are released, but that doesn’t rule out the possibility of a dialogue without preconditions to determine how, when and on what basis they will be released. I think it will be very difficult for the Catalan pro-independence leaders to sit down and negotiate the future of Catalonia when nine of them, who were chosen democratically, are behind bars. Therefore, my view is that the Madrid government now has a very narrow window of opportunity to make a resolute move; if they fail and the trial begins as planned this November, and there is an adverse ruling and the possibility of imprisonment, then there is no other alternative than an imminent secession.
Is Spain a fascist state?
It is very difficult to say that the whole state is fascist and I think it’s dangerous. There’s clear evidence that there are still influences of the Franco regime in the highest echelons of the judicial system. Are there elements of clear fascist violence from the Falangists of the far right? The answer is yes. I don’t think you should ask whether a state is fascist because in the end what fascism needs is for the opponent to end up doing nothing. I have the privilege of representing not only political prisoners but also exiles, and advising people who work in government. I trust the people I work for. The Spanish government is leading the Catalans along a path of brutal repression and intransigence, to try to crack down on their aspirations for self-determination. I believe that the independence leaders should continue to insist on the right to self-determination through a legally agreed referendum and that the results be accepted by both parties. Although the results of the referendum last year could have been taken into account, they [the pro-independence leaders] have openly proposed the possibility of holding a new referendum confirming the majority opinion of the Catalan people and showing that the relationship between Catalonia and Spain is now broken. And that there is the need for a new constitutional relationship. As in an unhappy marriage that comes to an end, there is a point where the relationship is broken. From my point of view, this union is now broken.
What would the next step be?
The solution could be an agreed referendum if the government moved to free the political prisoners and everyone could sit around a table and negotiate a peaceful and orderly transition. If they don’t, I suspect that there will be a quick exit... We are at a point where if there is no solution for the political prisoners, we must expect a clash. I think it’s the last National Day under the union with Spain.
Now everything is in the hands of the Spanish government. President Torra and President Puigdemont have made offers to negotiate before it’s too late, and soon it will be too late. An orderly transition is becoming less likely as time passes. October will be decisive for Catalonia, because it will not only be the first anniversary of the referendum and the declaration of the Republic, but also the first anniversary of the incarceration. There will be moments of tension in the coming months.
And if the proposal does not arrive?
If it doesn’t arrive, the Catalan independence movement will have a very difficult decision to make. What kind of independence movement accepts that its democratically elected leaders remain in jail? That would be a complete capitulation and a defeat and would delay negotiations by at least a generation.
Some people are saying the sentences for the political prisoners could be hard.
Opportunity exists now. The control and direction of future events are in the hands of the Madrid government. If the prisoners are sent to prison, my prediction is that the outcry will lead to an immediate declaration of unilateral independence – not like the one suspended last year – and this will lead to a difficult transition period. The trials will begin in November... and there will also be the UN’s decision. Now is the time for the Spanish government to negotiate or continue in line with the Rajoy executive.
What point are the allegations presented to the UN at right now?
The processes are confidential and there are three open. We await the results of at least two of these processes before the end of the year. International opinion is turning against the Spanish state. The impression is that Spanish politics has not managed the situation well in the last 12 months, since former prime minister Mariano Rajoy sent paramilitary forces against ordinary people in the streets. The responsibility to finally end this union [Catalonia-Spain] will fall on Madrid, and history will show that the succession of different administrations and their refusal to recognise the call for a plural and open democracy in Catalonia has meant the definitive break from Spain as a country.
Could this have serious consequences for the European Union?
I think it is very unlikely that Spain will be expelled from the European Union for this reason. However, I think the day will come when Catalonia will have its own seat in the European Union as an independent state, like Portugal.
Is the violence being perpetrated by Spain damaging its image abroad?
In recent months, many people have learned about what is happening in Catalonia and in Spain. The negative consequences of this process are very significant for Spain. There’s a dark face behind the sunny mask, and this will greatly affect the interests of Spain and also its commercial relationships. If Sánchez wants to save Spain, he needs to act now.


Long career and expert in human rights

Teresa Marquez

Ben Emmerson is a British lawyer of recognised international prestige. At the United Nations he has formed part of the tribunals that passed judgement on the genocide in Rwanda and the wars that led to the disintegration of Yugoslavia.

In June 2011, he was chosen by the UN Human Rights Council to be the organisation’s Special Rapporteur on terrorism and the promotion and mediation of human rights. He reports annually to the United Nations General Assembly, the UN Human Rights Council, and relevant entities established by the Security Council. He also organises visits and reports on countries, as well as providing technical advice to states.

Visit to Spanish prisons

Teresa Marquez

Emmerson tells of how last month he visited Spanish prisons as a lawyer for the first time. “I didn’t go to visit a criminal, but some civil society leaders who are paying the price for your right to live in a democracy. I talked a lot to Joaquim Forn, Jordi Cuixart, Jordi Sànchez and Oriol Junqueras,” he explains. “I firmly believe that the United Nations will find that Spain has violated not only the political rights of the prisoners, but also of all those who voted for them,” says Emmerson, who adds that the international image offered by Spain over the last 12 months is causing it serious damage. First, with the police violence on October 1, and then with the imprisonment of political leaders.

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