Episode 130      27 min 37 sec
Accused abroad: Foreign nationals and identity in criminal trials

Historian Associate Professor Richard Pennell discusses the confluence and confusion of nationality, identity, and jurisdiction in criminal cases crossing cultural and national borders. Presented by Eric van Bemmel.

"Law is an extraordinarily powerful tool for defining your identity." --  Associate Professor Richard Pennell




           



Associate Professor Richard Pennell
Associate Professor Richard Pennell

Richard has published extensively on the history of North Africa - particularly Morocco and Libya. While his main work has been on modern political history, he has also written about corsairing and piracy. His most recent books are Morocco since 1830: a History (London and New York: New York University Press, 2001) and Morocco: From Empire to Independence (Oxford: One World Publications, 2003. Translated into Spanish as Marruecos: del Imperio a la Independencia, Madrid: Alianza Editorial, 2006. He edited Bandits at Sea; a Pirate Reader. New York: New York University Press, 2001.He is currently working on two projects - the history of criminal trials abroad and resultant questions of national identity and the history of armed jihad.

Richard has published extensively on the history of North Africa - particularly Morocco and Libya. While his main work has been on modern political history, he has also written about corsairing and piracy. His most recent books are Morocco since 1830: a History (London and New York: New York University Press, 2001) and Morocco: From Empire to Independence (Oxford: One World Publications, 2003. Translated into Spanish as Marruecos: del Imperio a la Independencia, Madrid: Alianza Editorial, 2006. He edited Bandits at Sea; a Pirate Reader. New York: New York University Press, 2001.He is currently working on two projects - the history of criminal trials abroad and resultant questions of national identity and the history of armed jihad.

Credits

Host: Eric van Bemmel
Producers: Kelvin Param, Eric van Bemmel
Series Creators: Eric van Bemmel and Kelvin Param
Audio Engineer: Gavin Nebauer
Voiceover: Nerissa Hannink

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Accused abroad: Foreign nationals and identity in criminal trials

VOICEOVER
Welcome to Up Close, the research, opinion and analysis podcast from the University of Melbourne, Australia.

ERIC VAN BEMMEL
I’m Eric van Bemmell.  Thanks for joining us.  We see it in the news regularly; an American or an Australian or someone else we might label a westerner, is arrested and charged for a crime in a country far from home, a country with a different culture and perhaps a very different idea of what constitutes due process or the very notion of justice itself. A German national on drugs charges facing a death sentence in Southeast Asia or perhaps a North American on trial in the Middle East for manslaughter.  These cases can make for big news, especially when there exists considerable political or cultural differences between the two countries involved.  Fuelled by the media, public outrage is drummed up in one or both societies and it can seem as though a nation’s politics, values and even religious beliefs are what is really being argued in court.  And while it may seen only logical that for nationals charged with committing a crime in a given country should be tried under that country’s laws and in their courts, this hasn't always been the case.  To provide us with some perspective, both historical and contemporary, on the implications of people facing trial in foreign countries we’re joined by historian Richard Pennell, Associate Professor and al-Tajir lecturer in Middle East and Islamic history here at the University of Melbourne, Australia.  Richard has researched and written extensively on the history of North Africa and he is currently interested in criminal trials involving foreign nationals and the questions this raises about national and personal identity.  Richard, thanks for joining up on Up Close.

RICHARD PENNELL
Thank you.

ERIC VAN BEMMEL
So Richard, before we look at some of these very interesting cases that you've written about, in general terms what makes a criminal trial in which the accused is from another country and culture different from a purely domestic one?

RICHARD PENNELL
Precisely that, that law is culturally defined.  One of the oldest ideas is that people are defined not simply by the country they are in but the culture from which they come.  You see this argument played out in the courts today when people explain their errant behaviour in Australia by saying that their culture at home was so different that they should be given some leeway.  But it’s a very, very old concept; it goes back to a very old principle, Medieval/Early Modern principle, of personality of law.  That your identity is linked to where you come from, the jurisdiction which you hope is going to be applied for you – you think should be applied for you – is based upon your original primary allegiance.

ERIC VAN BEMMEL
Now in your writings you have touched on a number of modern-day cases as well as historical ones.

RICHARD PENNELL
Yeah.

ERIC VAN BEMMEL
A couple of the contemporary ones I’d like to have a look at of foreigners on trial, a common theme seems to be sort of East versus West or Islam versus Christianity.  The case of Schapelle Corby is one that you touch on:  an Australian woman, a young woman arrested in Bali in Indonesia in 2005 for bring cannabis to the island; what’s important about this case?

RICHARD PENNELL
The amount of fuss it caused, I think.  The Schapelle Corby case became a cause celebre in Australia.  Most of these sorts of cases don’t seem to get out of the environment of the two societies that are involved so that a case that involves an Australian in Indonesia has a resonance both within Australia and within Indonesia probably doesn't have any resonance at all in Britain.  A case involving British nurses in Saudi Arabia in the late 1990s had only a small resonance in Australia, partly because the victim was Australian, and none at all in the United States.  The case of Louise Woodward, a British nurse who was charged in Boston with the manslaughter of a child that she was looking after, that case had a resonance in the United States and Britain but very little in Australia.  So it really is connected with the way in which people perceive themselves and their relationship to law within a particular society.

ERIC VAN BEMMEL
Does it have particular resonance, though, when there’s a large cultural divide, a sort of East versus West thing?  So going back to Schapelle Corby, the people of Australia were incensed that she should be treated in a certain way in Indonesia.  People in Indonesia were perhaps a bit defensive about what they felt was appropriate?

RICHARD PENNELL
Yeah, but I don't think you want to put it in those sharp terms of East versus West.  I mean, there are some very obvious exceptions to this.  Singapore and the Philippines are both in Southeast Asia, they’re both Asian societies, and they both have legal systems which are based in one way or another on non-Asian systems.  Yet when Flor Contemplacion, a Filipino nanny, was accused in Singapore of murdering the child that she was looking after this caused just as much attention, angst, anguish in both societies - just as much nationalist fervour, if you like, grouped around both sides in these cases – as has taken place with Schapelle Corby in Australia and Indonesia.  If you look at another case, the case of an Egyptian who was accused in Saudi Arabia of libelling the headmaster of his son’s school and was eventually flogged in Saudi Arabia for imputing base motives to this headmaster, this caused an enormous reaction in Egypt and elsewhere in the Arab world because of the way in which Saudi Arabia presents itself as exceptional, or is presented by its regime as being exceptional.  So the idea that you divide this up neatly according to broad cultural identities is very misleading.

ERIC VAN BEMMEL
But national certainly is there?

RICHARD PENNELL
National certainly is there, yeah.

ERIC VAN BEMMEL
Historian Richard Pennell is our guest on Up Close today coming to you from the University of Melbourne, Australia.  I’m Eric van Bemmell and we’re talking about people on trial in foreign lands, and sometimes in very foreign cultures, and what this says about national and personal identity.  Now, Richard, you're a historian of North Africa and I know you've looked at some cases of this nature that took place some years ago there, particularly in the mid 19th century.  We’ll get to this particular case of Paolo Xuereb in a moment but could you give us a bit of a nutshell historical backdrop to North Africa in the mid 19th century and what that’s important.

RICHARD PENNELL
Well, what happened was a process from the 1830s onwards of a rolling European takeover of North Africa.  It began with the brief French occupation of Egypt in 1798 and the long term and substantial French occupation of Algeria starting in 1830.  But most of the other political units in North remained independent or autonomous for a considerable period after that.  Morocco didn't become a French and Spanish protectorate until 1912; Tunisia was occupied, became a French protectorate, and Egypt became a British protectorate in the 1880s; Libya was occupied by the Italians in 1911.  In that period between 1830 and the incorporation, formal incorporation of those areas into the European imperial system there was a long period of moving backwards and forwards, of adjusting, of various European countries trying to seek political diplomatic advantage, particularly in a place like Tunisia which had an Islamic government but it was one which, by the 1840s, was headed by a man named Ahmad Bey who was a reformist: who ended slavery, who brought in a form of ordered government.  Within that there was an attempt by Ahmad Bey to assert his own authority.  At the same time the ruler of Tunis, the ruler of Tripoli – or Libya as it became – and the ruler of Egypt were all officially no more than governors of the Ottoman Empire, which was one of the least powerful but one of the great powers of Europe and its rulers were trying to protect their own interests in North Africa.

ERIC VAN BEMMEL
Now with the Europeans, when the British, for example, came to Ottoman ruled Tunisia a number of their subjects also came along as well; people from Malta, which at the time was a British colony.

RICHARD PENNELL
It was a British colony and it was an extremely poor one.  It’s difficult now to remember that in the 1830s and the 1840s, North Africa and the eastern coast of the Mediterranean, what it now Syria and Lebanon and, most importantly, modern Turkey – the big international port of Izmir, or Smyrna as it was then called – these were the lands of opportunity for people living on poor islands in the middle of the Mediterranean.  Malta wasn't the only one, there were lots of people coming from Sicily and the smaller Italian islands dotted around.  So there was a mass movement of population from between about 1830 and about 1850 of people moving out of these barren, rocky islands and seeking their fortune in places which apparently offered more opportunity, but an opportunity to do what?  An opportunity, in particular, to engage in trade - and particularly in smuggling - and in providing manual skilled labour, which was lacking.

ERIC VAN BEMMEL
One of these Maltese economic migrants, if I can use that word, was a man named Paolo Xuereb, and he features in a celebrated case.  He was arrested in 1843 for murder.  Can you tell us a bit about that case?

RICHARD PENNELL
Well, Paolo Xuereb was a classic example of a Maltese smuggler.  He had been in Tunis, as far as I can work out, for about a year and he had hired a farm outside Tunis as a sublet from another Maltese who was the house manager, effectively, of the British Consulate; he was the man that organised the household.  This household manager discovered that Xuereb was using this farm as a base for his smuggling operations and, worried about the impression this gave of the British Consulate, he decided to throw him out.  He took the consular guard, who in Tunis was called a dragoman – it has a different meaning in the Middle East, it means a translator in the Levant and Turkey – but he was the man who negotiated on an everyday basis with the local authorities.  He took this man, operating in a sort of semi-police function, to the farm.  Xuereb then shot both of them, killing the Maltese immediately and leaving the Tunisian, who was a Tunisian and an Ottoman subject – a Muslim – in a dying, particularly ill situation, but he was conscious.  He gave a long description as to exactly what had happened in which he made it absolutely clear, firstly, that Xuereb had killed him and, secondly, that he was not willing to allow his children, his wife and family, to accept blood money, monetary compensation, in exchange for his death.  Because he knew he was dying, he wanted his murderer to die and he made that very clear.  Once the trial had been arranged it was absolutely certain what the result was going to be, there could be no other the evidence was so clear.  So there was a great move by the rest of the European community apart from the British consul, the consuls of the other European countries, to avoid having a trial because if they saw that if there was going to be a trial you would have the situation of Muslims executing a Christian.  This would have caused a sensation and great political difficulties for them both at home and with the large local community of Europeans in Tunis.  So a trial was eventually held because the British Government was looking at the way that the treaties had been made with the Tunisians, was the same as the treaties with the Ottoman Empire and with the authorities in Morocco.  So they were absolutely clear that if a European killed a local citizen, then the local courts had jurisdiction.  The argument was made by Paolo Xuereb’s defenders that the local courts were improperly managed, that they were not protective of justice, that he wouldn't receive a fair trial, that he could not receive a fair trial in a Tunisian court and because of the nature of the legal system.  The principal defender, who was another Maltese who had studied law but hadn't actually qualified, used the ringing phrase that Xuereb was being set up under an enemy law.  Quite clearly, this identified Islamic law and its systems as something which was diametrically, ideologically, culturally opposed to Europe.  I’ve looked at a transcript of this case which was made by the American Consul, a man named John Howard Payne, who is famous for only one thing and that’s writing the words of Home Sweet Home which, in this case, has a beautiful irony.  But Payne was a playwright and he got his consular interpreter to take down the trial and translate it into English and then set it out as a one act play.  It was extremely detailed and it makes very clear what the issues that were being fought on in the court were.  There is also an extensive Tunisian documentation of this case which makes it clear that the judges were looking to make sure that everything was meticulously done according to Islamic law.  It wasn't at all a rushed ad hoc court; it was done with great care and every legal aspect was covered.  I suspect that they were very anxious to make sure that everything was correctly done, both to satisfy the local audience and to satisfy the international audience as well.

ERIC VAN BEMMEL
To demonstrate to the European powers?

RICHARD PENNELL
That they’d done things properly, and to demonstrate to the local population that they’d done things properly as well.  So law became a symbol of the authorities acting properly.  It was just simply a case of getting that particular trial right.

ERIC VAN BEMMEL
This diligent attention to due process, did that satisfy the Europeans?  The consuls from other powers who were initially appalled that this man would be thrown to the local authorities?

RICHARD PENNELL
In the end they had no option.  The interesting thing about this case, and this is true of all these cases, that once the judgment has been made and once the case is over it vanishes, it sinks without a trace.  Once Xuereb had been exercised instructions came from Paris, drop it, that's it, you've done your best, you tried to save him but you couldn't, so the French Consul was told just to leave it and carry on.

ERIC VAN BEMMEL
I’m Eric van Bemmell, your host this episode of Up Close coming to you from the University of Melbourne, Australia.  We’re joined by historian Richard Pennell and we’re talking about people on trial in foreign lands.  Now, Richard, you argue that “personal identity is fluid and can conflict with the identities that national legal jurisdictions impose upon individuals”.  What do you mean by this?

RICHARD PENNELL
If you've been accused of a crime which would lead to a very serious penalty, even death, I think your inclination is going to pull out all the stops: to use every method, every call that you can to protect yourself.  The use of national identities, the use of national jurisdictions is a very powerful weapon in that armoury but it’s not the only one.  There is a contemporary case to Paolo Xuereb which positions things in a slightly different way.  Xuereb was asking - his defenders were asking – for the case to be held under British law.  Another Maltese the following year was accused of murder in Smyrna, in Izmir in what is now Turkey.  He murdered a Dutch woman and under the treaties the Ottoman authorities said that they had no interest in this, it was to be sorted out between the European residents.  The British found great difficulty finding something they could try him under.  They wanted to transfer him back to Malta, but the Maltese authorities said they could not transfer him back to Malta because the evidence was circumstantial and they would not permit circumstantial evidence on its own to convict somebody in a Maltese court.  There were witnesses, or putative witnesses, who said that they’d burst into the house where Azzopardi had killed this Dutch woman moments after he’d done it but nobody had actually seen him do it, and the witnesses were later impugned as to their integrity.  Joseph Azzopardi himself wanted to be tried in Malta but the British knew that if he was taken there he would get off, so they tried him in London under a now defunct law called the Murders Abroad Act.  It was eventually replaced by a new law called the Foreign Jurisdiction Act, which is still around.  It’s been amended many times and is one of the mechanisms by which the Common Law system which applies both in Britain but also in Canada and the United States, this case is widely quoted, widely cited as case law to define what the level of jurisdiction is.  Azzopardi didn't want to be tried by the British, whereas Xuereb did.  Azzopardi was tried by the British; he was tried in London, he was tried before a very harsh judge who was known to be a hanging judge and was sentenced to death.  The case raised such a lot of questions that the sentence was eventually commuted to transportation and he ended up in Van Diemen’s Land in Tasmania.  He did his time and got his ticket of leave and got a conditional pardon and vanished.  He eventually turned up, having changed not his name but some of his personal details, in Castlemaine, which is a gold rush town in the Australian State of Victoria, marrying an Irish girl actually 20 years his junior – supposedly only 10 years his junior because he changed his date of birth – and changed the fact that he’d already married in Malta.

ERIC VAN BEMMEL
And not divorced?

RICHARD PENNELL
And not divorced, so was a bigamist as well.  Then when his Maltese wife started a process of trying to find out where he was, he vanished again, so fairly clearly he changed his identity again.  So, you know, this is a sort of series of interlocking identities to escape your past.  He did the exact opposite, if you like, as Xuereb – he looked to get away from the British, whereas Xuereb looked to get British protection, however the British weren't going to give it to him.  The British rejected Xuereb’s advances but they insisted that Azzopardi was their pigeon.  So these identities are fluid.  If you look at more modern cases you can see the same sort of thing happening.  You see very, very clearly with refugee cases, with people seeking political asylum in Britain, the nature of the British system is that it provides a lot of opportunities for people seeking political asylum to go to the courts.  One of the most celebrated cases in the last few years has been a man named Habib Ignaoua, an Islamist radical from Tunisia who was arrested in London in 2007 and resisted extradition to Italy on the grounds that when the Italians got hold of him they would immediately deport him to Tunisia where he would probably be tortured to death.  Last year in London there was the dramatic case of a Saudi prince, Salih al-Nasir, who was imprisoned for murdering a homosexual partner who was his employee, having previously beaten him up in a lift on closed circuit film.  He was sentenced to a very long period of improvement, but almost immediately that he was sentenced he said, look, as a homosexual I will be at great risk in Saudi Arabia if you deport me to Saudi Arabia after the completion of my sentence, as the judge suggested should happen, so when the sentence is over I’m going to apply for asylum because I’m a homosexual and this would expose me to great danger.  But Salih al-Nasir initially tried to get away with his crime by claiming that he was in some way covered by diplomatic immunity, in other words that he was a Saudi, so he changed his emphasis of his identity halfway through.  The other case is the really strange case of a man named Lee Murray, a Briton with a Moroccan father who made a name for himself as a cage fighter, which is a method of hand to hand combat with extreme violence.

ERIC VAN BEMMEL
In a confined space.

RICHARD PENNELL
In a confined space, in a cage, and he was a very successful cage fighter.  He was less successful as a criminal.  He got himself involved in the biggest cash robbery in English history and the police wanted him very much.  He fled to Morocco, where he’d never lived – his father had lived in England for all his son’s life – but he fled to Morocco and he announced that he wanted to take up Moroccan nationality on the grounds that the Moroccan law said that it was impossible to extradite a subject of the king to a foreign jurisdiction.  This was successful and he changed his national identity, he changed his social identity, he changed his name; this was successful and he was not extradited.  But as he stepped out of the court after the hearing at which he won his case, he was arrested for being a Moroccan subject who would had committed a crime in a foreign country and was duly sentenced to jail in Morocco.  But the sliding fluidity of that, if you see what I mean – people moving backwards and forwards.

ERIC VAN BEMMEL
Almost with a sense of choice or agency.

RICHARD PENNELL
That's right, yeah.  It does raise questions as to how you define people, people’s identity and the way they fit into national jurisdictions and, of course, it defines how the people that exert jurisdiction – jurisdiction as the idea of speaking the law, people who speak the law, the authorities – how they exert their identities and how they impose identities on other people.  So it’s much more complicated than the very simple idea that you should be tried in the place where you are.

ERIC VAN BEMMEL
In some ways we don’t ever learn.  These cases come up – as you say, they’re forgotten very quickly – and then other ones like it come up, there’s an outrage, it fades away.  There’s no real progress here, in a sense, is there?  I guess there’s no consensus on how this should be treated?

RICHARD PENNELL
No, but I don't think there’s going to be because I don't think the purpose of these cases is to define a general legal principle.  What happens in all these cases is that people define themselves in accordance with the needs of the moment and that definitions of identity are fluid and that law is an extraordinarily powerful tool for defining your identity.  If you look at the way in which Muslim societies and Muslim countries are perceived in, say, Australia or in Britain, very often the idea is expressed that their legal system is not like ours, it’s brutal, it’s violent, it’s unfair.  In the Saudi nurses’ case, a commentator in one of the British tabloids said that Saudi courts don’t follow the procedures of Croydon Magistrates Court; Croydon is a suburb of South London.  This is a very odd thing to say, but what she was saying by doing that is saying, look, we have got our system and we know it’s a good system, and the Saudis have got their system and we know it’s a bad system.  If you looked at what the Saudis said about that case, they said, well, you know, we’ve got a system which works because, you know, there is no crime in Saudi Arabia – well, there’s very little crime in Saudi Arabia, that’s what they say – and the reason there’s no crime in Saudi Arabia is because we have a very strict legal system which punishes people who do wrong; look at your legal system, they all get off and so there are criminals running around the streets killing people and attacking them and stealing their property, that doesn't happen in Saudi Arabia.  Similar arguments are actually made by the Singaporean Government and they use a version of the Common Law system which applies in Britain, so it’s more complex than the legal system that you use.  Those ideas have very, very strong resonances and the whole movement in the Muslim Middle East over the past 20 years of reasserting Islamic-ness in society has taken the form very often of asserting a return to Islamic law, as though that defines what the society should be like.  So these individual cases, if you like, fit in with these broader ideas of how society should be organised.  Very often they clash with them as well, contextualised in that way.

ERIC VAN BEMMEL
Richard, thanks for your time today and sharing your thoughts on the issues of identity and criminal trials involved foreign nationals.

RICHARD PENNELL
Thank you.

ERIC VAN BEMMEL
Thank you.  Our guest this episode of Up Close has been Associate Professor Richard Pennell, al‑Tajir lecturer in Middle East and Islamic history at the University of Melbourne.  Relevant links, a full transcript and more information on this episode can be found on our website at upclose.unimelb.edu.au.  Up Close is a production of the University of Melbourne, Australia.  This episode was recorded on 4 February 2011 and produced by Kelvin Param and me, Eric van Bemmel.  Audio production by Gavin Nebauer.  Up Close is created by me and Kelvin Param.  Thanks for listening.  Until next time, goodbye.

VOICEOVER
You’ve been listening to Up Close.  For more information visit upclose.unimelb.edu.au.  Copyright 2011. The University of Melbourne.


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