Westmeath special to lawyer who helped convict Karadzic

The question of where home is was always going to be a tricky one for Fergal Gaynor, who hit the headlines earlier this year when he was named as one of four lawyers in the running for the position of prosecutor at the International Criminal Court at The Hague.

Fergal, who got the second highest number of votes, was born in Malawi to Westmeath parents; was educated in Ireland; currently lives in France – and is shortly moving to the Netherlands.

“I dodge the question a bit,” he laughs, when asked where he considers to be home.

“If people ask me a lot of questions about childhood, you have to explain ‘I was born in Malawi; I was brought up in Swaziland – or Eswatini as it’s now called… Usually, I just say: ‘I am Irish’.”

The son of Frank Gaynor from Clondalever, Collinstown, and his wife Monica (née McQuaid) from Irishtown, Mullingar, 49-year old barrister Fergal has spent most of his career to date prosecuting war criminals, including the notorious Radovan Karadzic, and representing the victims of international headline-scale injustice.

But while he didn’t grow up in Westmeath, he has great affection for this area – and thanks to his father’s unstinting commitment to Clonkill Hurling Club, a more-than-passing interest in how their players are doing.

Born in Africa, Fergal was six before he spent any time in this country – and before he ever saw snow.

“My strongest memories are of feeding my grandmother’s chickens, and playing in the snow in the field next to her house in Clondalever,” he recalls fondly of that visit.

At around 11, he left his idyllic African childhood behind when he was sent to the prestigious Jesuit school, Clongowes Wood, near Clane, County Kildare to begin his second-level schooling, followed by progression to Trinity College to study law.

While he returned to Africa during school holidays, it wasn’t until well into adulthood that he was ever to live in Africa again.

“It was a tough experience at first,” he says of the transition to boarding school, so far from his parents. “Life in Eswatini had been easy, with lots of running around swimming pools in the sunshine and enjoying barbecues. There wasn’t much of that going on at boarding school, which was a much more regimented life. But there were lots of other experiences that were positive, and of course you make friends that last a lifetime.”

That he regards as a good trade-off and he is grateful that decades on, he remains in almost daily contact with many of those friends via WhatsApp.

Extraordinary

Fergal’s career has seen him participate in some of the most extraordinary trials in world history, and he believes passionately in the value of the work being done by the International Criminal Court.

“Going back 25 years, a lot of people thought that was going to be impossible,” he says.

“I remember studying this in 1993 and 1994, and everyone thought this idea of having a modern war crimes tribunal and putting people on trial for these horrific crimes was never going to work out in practice. And the fact that it did work out in practice in respect of Yugoslavia and Rwanda in particular – but also Cambodia and Sierra Leone – has been a huge surprise, to a lot of people.”

For Fergal, the field is engaging and consuming, in a way that he did not find commercial work to be: “The work is incredibly rewarding – not financially – but incredibly rewarding. You get on your bike and you cycle to work and you are looking forward to going to work. When I was a commercial lawyer in London and I was getting on the Tube and going into work, I wasn’t particularly thrilled about going into work.”

Most of us may never have never heard of the cases in which Fergal has been involved – but he has sat face to face with people accused of unimaginable levels of horror and genocide.

The obstacles can be formidable, but the payoff is the sense of contributing to justice.

Fergal was a prosecutor at the Yugoslavia tribunal in The Hague for nine years, working mainly on the Bosnian Serb leadership cases, including the trial of Radovan Karadzic, who is serving a term of life imprisonment, having been convicted of genocide, crimes against humanity and war crimes.

“I had many different roles; researching and drafting legal submissions; interviewing witnesses; reviewing huge quantities of documentary evidence; examining and cross-examining witnesses in the courtroom; getting to grips with the technical evidence of expert witnesses; liaising with defence counsel,” says Fergal.

Building a major military or political leadership case requires dozens of staff working very long hours, he points out, and the tribunal was one of his career highlights: “It was an enormous privilege to work with staff from across the world in building strong evidentiary foundations which resulted in successful prosecutions,” he states.

In 2007, Fergal worked as part of a UN investigative team interviewing witnesses and analysing data relating to the assassination of the former Lebanese prime minister, Rafic Hariri.

This led to the establishment of the Special Tribunal for Lebanon.

That same year, and also in 2008, Fergal was a prosecutor at the International Criminal Tribunal for Rwanda, based in Tanzania.

“My team members and I were prosecuting Pauline Nyiramasuhuko, who had been a member of the government that oversaw the genocide in Rwanda, and five other accused.”

The case concerned the killing of more than 200,000 persons in Butare prefecture and other crimes, and in the end, all six were convicted and their convictions upheld on appeal.

For over three years, Fergal represented the victims in the ICC case against Uhuru Kenyatta, president of Kenya. The case took Fergal back to Africa, as the judges created a model of victim participation which required him to live in Kenya, returning to The Hague for pre-trial hearings.

“I lived in Kenya for most of 2013 and 2014, at a time when feelings among Kenyans concerning the ICC cases ran very high, and there were considerable security issues surrounding our work in Kenya,” he says.

Cambodia

Currently, Fergal serves as the Reserve International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia (ECCC).

“I had long been interested in the Khmer Rouge period, and in understanding how a government could methodically force its people down a path of dismantlement of its society, disintegration of its institutions, and deliberate destruction of a large proportion of its population,” he says, going on to explain that the Khmer Rouge Tribunal is one of the so-called “hybrid” or “mixed” tribunals in which staff from the post-conflict country work alongside international staff, implementing a blend of national and international law.

“I was interested in seeing how this model works on the ground, as I passionately believe in involving nationals of the post-conflict country as much as possible in the justice process,” he says.

From 2017 to 2020, Fergal supervised investigative teams at an NGO that seeks to fill the gap caused by the failure of the UN Security Council to refer serious crimes in Syria and Myanmar to the ICC. The investigations he oversaw focus on the collection of what is informally called “linkage evidence” (the evidence that proves the participation of the accused in the crimes charged) and preparing criminal briefs against those most responsible for, mainly, crimes against detainees held by the Syrian government.

Explaining the role, Fergal describes how the evidence consisted of hundreds of thousands of pages of communications within and among Syrian government intelligence and military units, at every level, and a large array of other forms of evidence, including photographs of thousands of corpses of those who died in detention, taken by Syrian military police.

It also involved interviewing large numbers of witnesses, both victims and defectors from the Syrian government forces. Fergal has also been involved in the preliminary stages of an investigation into crimes committed by the defence forces of Myanmar.

Just last year, he was appointed a Judge of the Kosovo Specialist Chambers (KSC), a court in The Hague which is within the Kosovo legal system.

Established pursuant to an international agreement ratified by the Kosovo Assembly, the KSC has jurisdiction over crimes against humanity, war crimes and other crimes under Kosovo law, which were commenced or committed in Kosovo between 1 January 1998 and 31 December 2000 by or against citizens of Kosovo or the Federal Republic of Yugoslavia.

Trinity

Fergal admits that in school and college he had little imagined the direction he would pursue: “I chose law for the very bad reason that some of my school friends had chosen law at Trinity as their first choice on their CAO form. It sounded good to me and I followed suit. At that time, I had no passion for the rule of law, or for justice in general. That came later,” he says.

That said, he credits his African childhood with igniting the spark of his passion.

“The part of Malawi that we lived in, Mulanje, is a high-density rural environment with high levels of poverty and infant malnutrition, low standards of education, and medical relief for the ordinary person was totally inadequate,” he says.

As a teenager, out walking the dog, he took in the poverty and wondered about it and tried to work out why things were that way.

“I concluded that this was totally unacceptable, and I had to do something about it. So I initially wanted to work in development after my law degree.”

After qualifying, he went initially into a law firm in London, staying about four years, from 1997 to 2001, with the exception of a six-month stint working in Tokyo.

“I was working very long hours, much longer than I had worked at university. I remember having to leave social events on Saturday evenings with profuse apologies to the host, to return to the office.

“I worked for a large law firm which hired excellent lawyers. There was little tolerance of mediocrity: it was a baptism of fire, but ultimately it was good for me. It instilled in me high professional standards.”

It was then, and remains still, very difficult to get into the international criminal sphere, but Fergal had his heart set on getting into a human rights role for some time.

“After I had qualified as a solicitor, I deluged the international tribunals in The Hague and Arusha with written applications. I got nowhere: I wasn’t even called for interview.

“Eventually I went to The Hague to meet a few people, through friends of mine who worked there. That gave me a foot in the door, and I got an interview to be a judge’s assistant. I came second in that interview, but the Prosecutor’s office got hold of my CV and gave me another interview, and finally I was in. Once I was in, I worked very hard as I was keenly aware that I didn’t have a background in criminal law.”

Fergal says he believes passionately in the need to uphold the rule of law.

“This includes ensuring full respect by states for their international treaty obligations, and full protection of the fundamental rights of accused persons and victims,” he says.

“Robust respect for the rule of law benefits all of us. In an increasingly interconnected world, we are more reliant than ever on a rules-based international order.”

As someone who spent their formative years in Africa, and who loves going back there, on the subject of white privilege he says we do need to keep listening to those with whom we work and socialise who are not white, to hear their views as to how their everyday lives are affected by implicit or explicit racism.

“We need to keep up the dialogue. We all need to be fairly humble on this issue. Many of us need to be more aware of the issue of unconscious bias, and how that affects the way we speak, and interact with others,” he says.

Ireland

Rules internationally since the emergence of Covid have affected everyone, and they have affected Fergal’s ability to return to Dublin every few months – as was his wont – to see his parents, who are long back living in Ireland.

At this stage, the family’s connection with Africa goes back almost 60 years as it was as long ago as 1962 that Frank first went to Africa to teach with the Kiltegan Fathers.

He did return to Ireland, and married Monica, but he got itchy feet again and persuaded Monica to move with him to Malawi, and later Eswatini. There, he went on to work in the areas of teacher training and syllabus development.

Frank and Monica may yet visit Africa again as Fergal’s sister Mags is due to take up a position soon at the Irish embassy at Dar es Salaam. He has two other sisters, Linda, who lives in Dublin, and Claire, who lives in London.

“I still have plenty of aunts, uncles, first cousins, second cousins, in the Mullingar area. Pre-Covid I would of course see them from time to time. A few years ago we rented Michael Jackson’s old house, at Bishopstown, in County Westmeath to celebrate my parents’ 50th wedding anniversary and to introduce my wife – who is from Cambodia – to everyone. It was a terrific weekend.”

And while, as an ex-Clongowes boy he enjoys rugby, his father will keep him abreast of the fortunes of the Clonkill hurlers – once the restrictions lift!