It might be thought that the stars aligned at the time of my birth, the very time when the judges at Nuremberg pronounced a verdict that created international criminal law. I first noticed the coincidence when I began work on Crimes Against Humanity half a century later. I had decided to write a book about the prospects of enforcing human rights law, in the hope that the book might actually advance these prospects. The time seemed propitious: the European Court of Human Rights was expanding its jurisdiction, there were some good judgments from the Inter-American Human Rights Court that served Latin America, and the Privy Council was developing a human rights jurisprudence for the Commonwealth, at least in respect of death sentences and trial fairness. National courts had delivered some important judgments on torture and on free speech; there were cases stretching back centuries on the law of war (‘international humanitarian law’, as it is confusingly called); the UN had set up war crimes courts for the nations that had emerged from what had been Yugoslavia; a court had been instituted in Tanzania to prosecute the perpetrators of the Rwandan genocide. There had even been a conference in 1998 to establish an International Criminal Court. My book attempted to weave together these fin de siècle developments as indicative of a historic shift, from appeasement to justice, in international relations. No longer would tyrants, I posited, be allowed to leave the bloody stage with amnesties in their back pocket and their Swiss bank accounts intact: they could be indicted by international prosecutors and tried in international courts.
The problem with prosecuting tyrants, however, was that they were usually heads of states, who had immunity from prosecution. I argued in the book that the key to puncturing the ‘state sovereignty’ that gave them immunity would be to charge them with a ‘crime against humanity’. The worst of such crimes was genocide, which the world had a duty, under the UN Genocide Convention, to punish. But mass murder, torture and rape would be elevated into international crimes if committed systematically or over a widespread area, and pardons and amnesties granted under local law could not shield rulers from punishment by international courts. Crimes Against Humanity: The Struggle for Global Justice was both an exposition of human rights law as it had developed thus far and a clarion call for a binding obligation on all states, including America, to submit to international justice. The book’s advocacy of a global justice movement was described by John Bolton, George Bush’s future UN ambassador and now Donald Trump’s national security adviser, as ‘a threat to American sovereignty’.
It was published on 24 March 1999, the day the House of Lords ordered retired Chilean dictator General Augusto Pinochet to be extradited to Spain for trial as a torturer, and the day that NATO bombed Serbia to stop its ethnic cleansing in Kosovo. The age of enforcement had begun, at the fag-end of a century in which more than 150 million lives had been lost to war and genocide. The book had 450 pages in its first edition; the fourth, which I wrote in 2012, had over 1,000, a measure both of the craving for global justice and the complications of delivering it.
The first test of the main thesis in my book came with the arrest in London of General Pinochet. I had written to him, without answer, of course, as an Amnesty member, back in 1973 when his coup overthrew the democratically elected Salvador Allende. Pinochet had murdered Allende’s supporters (including Pablo Neruda), ‘disappeared’ 4,000 dissidents, and set up torture chambers to break opposition to his military rule and spread terror. So confident was he that no law could catch up with him that he allowed his state torture to become public knowledge. It generally involved the infliction of pain by electric shocks, accompanied in many cases by degradation through rape and bestiality, often in front of family members, who themselves were induced to confess to stop the agonies of a wife or daughter.
Pinochet retired as commander in chief of the army in 1998, festooned with amnesties he had arranged for himself. Preserved by that cloak of immunity which international law bestowed on former heads of state, he decided to come to London – to have his back treated at a clinic in Harley Street. He had been given red-carpet treatment on previous visits (the Ministry of Defence was hopeful Chile would buy British arms) and had openly supped around town. My friend Ruthie Rogers (whose husband Richard, one of the world’s leading architects, had designed the court in Strasbourg) ran the fashionable River Café restaurant, and was so horrified at the sight of Pinochet’s name on the gold card print-out that she donated the amount he had paid for his meal to Amnesty International. On his arrival at Heathrow on this visit he was, as usual, given VIP treatment, and the next day it was reported that the ageing mass murderer ‘took tea’ (I am reliably informed it was whisky) with his good friend Lady Thatcher. He then attended his private clinic, from where his presence in London was leaked to The Guardian.
That is when Baltasar Garzón, Spain’s judge in charge of terrorist investigations who had for years been gathering evidence of Pinochet’s guilt, asked Scotland Yard to arrest him for extradition to Spain under a European convention that facilitated the processing of criminal suspects wanted for trial in member states (this was the European Arrest Warrant – EAW – used to arrest Julian Assange). Obedient to European law, London’s anti-terrorist squad pulled off one of its finest operations, surrounding the bed of the recumbent torturer just a few hours before he was scheduled to fly home. His arrest produced an international sensation: the Pope, Henry Kissinger and George Bush Sr joined Lady Thatcher in demanding his release – so too did his mortal enemy Fidel Castro, anxiously urging respect for Latin-American dictators (like himself). Pinochet’s arrest was immediately challenged in court. At the initial stage, three judges (and they were good English lawyers) ordered his release: they could not understand how an allegation of torture, which could be made against so many state visitors to London, could puncture Pinochet’s immunity. Garzón appealed to the House of Lords, and both Amnesty and Human Rights Watch entered the proceedings to explain how those who committed crimes against humanity should have no hiding place.95
I was briefed by Human Rights Watch, which gave me an opportunity to put some passages in my new book into a legal submission, to the effect that immunities should apply to heads of state only in relation to their exercise of legitimate state functions, and by no stretch of the imagination could widespread and systematic torture – a crime against humanity in international law – be regarded as a legitimate state function.
The verdict from the House of Lords, televised live, had all the thrill of a football penalty shootout, as the five Law Lords rose in turn to announce their decision. The first two put their balls firmly through our goalposts: it was 0–2 to the torture team. Then one, and another, scored for Garzón – the international justice game stood at 2–2. That was when Lennie Hoffmann, by now a Law Lord, stood to declare that Mr Pinochet had no immunity – the torturer must go to trial. There was pandemonium in the square outside, full of his victims who had come to London in the hope of seeing international justice done: for the first time since Nuremberg, it was. But it was also British justice, which is adamant that no judge should in any way be perceived to be affected by any private interest. Lord Hoffmann had helped, free of charge, a charitable trust set up by Amnesty, which had made itself a party to the case, and so was disqualified. The judgment was set aside and a new panel of seven Law Lords had to be found, none of whom must have any connection with human rights. They were, in the main, commercial lawyers whose experience was largely concerned with interpreting contracts. They focused on the Torture Convention – one of those unenforced and hitherto unenforceable documents that most governments had signed without dreaming it would have any effect. But it had imposed a duty on them ‘to try or to extradite for trial’ credibly suspected torturers, and our literal-minded Law Lords took those words to mean what they said. The final score in the return match was 6–1 to human rights.
Pinochet spent eighteen months under house arrest (well, mansion house arrest) in England before, with a mercy the general had never shown his victims, the Home Secretary allowed him to return home due to medical evidence that he was unfit for trial. Once back in Chile he had the most amazing recovery since Lazarus, but spent his last years tormented by legal actions and prosecutions for his newly discovered corruption. The Pinochet precedent entered international law – and was used to further the prosecutions of Slobodan Milošević, Charles Taylor, Radovan Karadžić, Ratko Mladić, Hissène Habré and other mass-murdering leaders and generals.
In London, the Pinochet case was for several months the main political controversy, and I went around TV studios arguing that his crimes against humanity could not admit of human forgiveness. My opponents – usually Norman Lamont, once Mrs Thatcher’s Chancellor of the Exchequer – had to acknowledge the evidence of the viciousness of Pinochet’s torture regime; they claimed that retribution should be left to history (which depends, as Richard Nixon pointed out, on who writes it) or to God (but in an increasingly secular society, belief in a torture camp named ‘Hell’ was no longer universal).
The loudest ploy of the Pinoshits was to accuse us of ‘destabilising Chile’s fragile democracy’. This was soon proved to be nonsense – Michelle Bachelet, whose father (an air force general loyal to Allende) had been killed by Pinochet, was elected President. The country settled down and showed no lingering fondness for its dictator, especially when he was revealed to have stolen a lot of its money. The Blair government at least played a straight bat – ‘We must let the law take its course.’ The course it took was a matter of some bewilderment to Australia’s Prime Minister. ‘I was not taught that this sort of thing could happen when I was at law school,’ remarked a bemused John Howard.
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It is one thing to formulate a theory about international justice, and another to put it into practice. That real challenge came in 2002, when I was invited by the United Nations to become an appeal judge at its latest war crimes court, in war-torn Sierra Leone, and was made the court’s first president. At the time, Sierra Leone (named by fifteenth-century Portuguese navigators after the lion-shaped mountains they could see from its shores) was the poorest country in the world. Many of its people had been captured by early slave traders, but the capital, Freetown, had been established by British abolitionists as a haven for the slaves they had freed, and for the American slaves who had fought for Britain during the war of independence. In due course the country’s mineral wealth – notably its diamonds – was despoiled by my benefactor Cecil Rhodes and the De Beers corporation, and until the 1960s it had been run by colonial administrators. Graham Greene, stationed there during World War II, gives a memorable account of the country in The Heart of the Matter. It was a peaceful place until it achieved independence in 1961, when it was disrupted by army coups and became for a while the regulation one-party state. The eleven years from 1991 saw it dissolve into the most brutal civil war between rival armed factions, fighting each other as well as a government returned after a UN-sponsored democratic election.
One such faction, the Revolutionary United Front (RUF), was led by a pathological killer named Foday Sankoh, and backed by Charles Taylor (President of neighbouring Liberia). The two had met at a terrorist training camp in Tripoli in the early ’90s, hosted by Colonel Gaddafi, whose malign hand was detectable behind brutal RUF incursions into Sierra Leone from across the Liberian border. The RUF devised a new entry in the human rights chamber of horrors, called ‘chopping’. The slogan of the UN-brokered election was that the people had ‘power in their hands’. So, those who had voted were asked in which hand they had held their pen, and that hand was then chopped off. Mutilation proved successful as a means of terrifying and degrading the population, so the group devised more devilish tortures, such as lopping off legs as well as arms, sewing up vaginas with fishing lines, cutting open the stomachs of pregnant women and padlocking mouths. It recruited children, drugged, trained and armed them with AK-47s, ‘blooded’ them by forcing them to shoot their own relatives and had them execute village chiefs in the main square. It attacked Freetown in an operation called ‘No Living Thing’, which lived down to its name.
My appointment as a UN appeal judge was welcomed by the High Commissioner for Sierra Leone, who assured me that it would not take up too much of my time – just an occasional appeal a few years hence, after the trials had finished. Of course it did not work out that way: my fellow judges elected me as the court’s first president and I had to be on hand regularly for the difficult work of getting the court up and running, interspersed with visits to the UN in New York to report progress and ask for more funds in order to progress further. But I made the time, and although my duties in Sierra Leone disrupted my life and my practice for five years, I thought that duty had, in some indefinable way, called. If justice could conduce to peace, after Africa’s most barbaric war in its poorest and most inhospitable country, there would be some proof of my book’s thesis.
I arrived in Freetown in 2002 to a city that bore little resemblance to Graham Greene’s description – it was full of burned-out buildings and the ravages left by Operation No Living Thing. It was a dangerous, unpleasant place – some visitors, like Tony Blair, simply stayed at the airport, made a speech and returned home on the same plane. To enter the city involved a lengthy ferry trip over a long stretch of water or else a hair-raising flight in one of the old Ukrainian helicopters used by the UN, with young Ukrainian pilots. Two of them crashed while I was there, losing more than twenty lives on each occasion.
To provide justice for victims of the atrocities, the special court was to comprise three institutions – the registry, the office of the prosecutor, and the judiciary – two chambers for trials and one for appeals. I presided over the Appeal Court. We had an American prosecutor, David Crane; a British deputy, Desmond de Silva QC; a British registrar, Robin Vincent; and my fellow judges. They were a mixed bag, ranging from a fine and upstanding Nigerian jurist to a local judge who drove Robin mad by demanding employment for his relatives and provision of court cars to take his wife shopping. They had the flaws of being UN appointees nominated by member states, rather than being meritocratically selected. Some were lazy (one trial court rarely managed to start on time) and venal, forever wanting me to use my powers of advocacy at the UN to increase their perfectly adequate salaries.
The war had ended in an uneasy peace and we were guarded around the clock by a contingent of UN ‘Blue Helmets’, alert for threats from Charles Taylor and from factions which had not yet laid down their arms. The city was rife with rumours of excursions by Taylor’s death squads (he was still in power in next-door Liberia) and by al-Qaeda operatives seeking diamonds for their own financing of terrorism elsewhere on the continent. There was a more immediate threat, too: as I was ushered into the decaying ‘VIP room’ at the airport on my arrival, I noticed the first malarial mosquito. Almost every person at the court went down at some point with this recurring disease, the carriers of which I kept at bay by a foul-smelling repellent called DEET (diethyltoluamide). I succumbed on one occasion, and tried the remedy I remembered from my Biggles books, namely quinine, immediately sozzling myself in gin and tonic (only later was I reminded that quinine was in the tonic, not the gin). Fortunately, Robin had obtained some of the mysterious herbal pills which the Vietcong had developed to cure their malaria, and it cured mine – nobody knew how.
The war had taken 75,000 lives and left many more in various states of mutilation – our court sponsored a disabled football team, all members on roller-boards, without arms or legs or both. It was heart-rending to hear, at the court’s official opening (graced by Kofi Annan, then the UN Secretary General, and Harriet Harman, UK Solicitor General), the children’s choir from the Milton Margai School for the Blind: all these kids had been deliberately and viciously blinded by the RUF during the war. Victims were everywhere, as were those who had mutilated them. The only persons we could put on trial were those perpetrators who ‘bore most responsibility’ for the atrocities. A dozen of the faction leaders were rounded up and put in our prison, including Chief Samuel Hinga Norman, whose tribal militia, the Civil Defence Force, had actually fought for, and saved, the elected government. The American prosecutor decided to charge him for recruiting child soldiers, which was ironic since Norman himself had been recruited into the British Army at the age of fourteen. He was a respected figure in the community and had been made Home Affairs minister in the post-war government – he was arrested on the way to a Cabinet meeting, and when he reached the prison the guards saluted.
This was a reflection of our biggest challenge – we were the first of the new international courts to sit, as the army said, ‘in theatre’ – in the very place where the crimes had been committed and where many of their perpetrators were still at large. The judges for atrocities in the former Yugoslavia sat in safety at The Hague, and genocidaires in Rwanda were on trial in Arusha, in peaceful Tanzania. But we wanted to let victims see justice being done on those most responsible for their sufferings, and we did so publicly, notwithstanding the danger and the inconvenience. People oppressed for years by the most primitive savagery saw their oppressors arrested and brought from a new jail to a new court to which they could come and hear evidence of their sufferings being used to punish their torturers. When Charles Taylor was apprehended and brought by helicopter to Freetown, almost every citizen clambered to the rooftops of the city to watch. However, the UN deemed it too dangerous to try him in ‘theatre’: the court moved (by which time I had left it) to the safety of The Hague.
Delivering on the Nuremberg legacy after a civil war in Africa had other problems. As the Nuremberg prosecutor had said, ‘We succeeded because of the Teutonic habit of writing everything down.’ But the warring factions in Sierra Leone had kept no incriminating records, and guilt had to be proved by laborious excavations of clues from mass graves and by testimony from informants who needed protection – some had to be given new identities and a new life in other countries. There were many novel questions that my appeal court of five judges had to consider. And because ‘fair trial’ concepts had moved on since Nuremberg, we had to make improvements. For example, under the Nuremberg model the prosecutor was an ‘organ’ of the court, along with the judges and the registrar, but there was no provision for the defence. I had always felt that this was unfair, so I instituted an independent defence office, which could ensure that all prisoners were competently – sometimes outstandingly – represented, and this initiative was later adopted by the International Criminal Court.
Our first task was to build a court. I approached Richard Rogers. As a believer in international justice, he agreed, without taking a fee, to design a world-class structure for Sierra Leone. But all financial decisions were made by a UN committee in New York, and when his tender came in – at only $100,000 more than a firm which had built a Crown Court at Wolverhampton – I could not convince the bean-counters to leave Sierra Leone with an architectural legacy. Certainly the Americans (the Bush regime) were opposed to any form of legacy – they wanted our defendants convicted as quickly and as cheaply as possible. I had to explain that justice need not be exquisite, but must not be rough: if they failed to provide enough money to pay for the trials, and particularly for the defence office, we would pull up stumps and depart. In the end the funds were provided, a serviceable court was built and the trials proceeded as fairly as possible.
This was in no small measure due to Robin Vincent, the epitome of an honest and imaginative administrator. He was an English cricket obsessive, and we spent our spare time happily sledging each other. His calmness and cunning came through in dealing with the UN bureaucracy and in overcoming all the frustrations in getting the court up and running. At one point he sent a list of essential demands to Kofi Annan, with a threat to resign if they were not met. ‘You shouldn’t resign, old chap,’ said a visiting stuffed-shirt from the British Foreign Office. ‘You won’t get your K.’ (FO-speak for knighthood.) ‘I don’t give a damn about my K,’ replied Robin. ‘I only care about my court.’ Annan came through with the resources, and the UK did come through with his K before Sir Robin died of cancer in 2011, shortly after his term of duty had ended.96
In 2004, I took the judges to the Middle Temple for a week to settle the ‘Rules of Evidence and Procedure’ and our prosecutor indicted Charles Taylor. The court was in business, and soon in session. But did international law even allow us to indict a sitting head of state? A week of Appeal Court hearings was scheduled to settle this and other unsettled questions, such as whether it was an international crime to recruit child soldiers and whether an amnesty could be valid for a crime against humanity. Taylor remained safe at first as dictator of Liberia – we had kept his indictment a secret, but when he left for a conference in Ghana the prosecutor opened it and asked the government to arrest him. Instead, it warned him and assisted his flight back to Liberia. He was overthrown, but fled to Nigeria where he was allowed to stay as a paying (i.e. bribing) guest, but our prosecutor managed to freeze his Swiss bank accounts and ultimately, thanks to US pressure, Nigeria handed him over. He had, in the meantime, sent a team of lawyers to our Appeal Court to argue that, wherever he was, he was beyond our jurisdiction, because he possessed the immunity traditionally given to heads of state. We rejected this argument and decided that credible allegations of crimes against humanity might be tried in an international court irrespective of any claims of immunity, which were binding only on domestic courts.
We refused to be bound by the amnesty that the defendants had all been given by a peace agreement signed at Lomé in Togo, where peace negotiations had taken place in 1999. This took international law a step further than had been reached by the Pinochet precedent, which had invalidated only the amnesties that Pinochet had given to himself. Our decision invalidated all amnesties given for crimes against humanity. Amnesty International applauded the judgment and I suggested that it should change its name – to ‘No Amnesty International’. It was in this case that I had the sensation which must be felt by many appellate judges, of rejecting the legal submissions I had once fervently made when a barrister. The arguments I had canvassed to uphold the amnesty and save the lives of the Muslimeen in Trinidad did not apply to the Revolutionary United Front, which had continued to kill and mutilate.
Our most ground-breaking judgment was to declare that it was a crime to recruit child soldiers. This was the first prosecution of its kind anywhere in the world, and it was appropriate to initiate it in Sierra Leone, where over 10,000 children under the age of fifteen had been enlisted to serve in the armies of the warring factions. Many were killed or wounded and others were forced by guns or induced by drugs to kill and maim their victims, including members of their own community and even their own relatives. For survivors, the consequences were traumatic – they suffered reprisals from the villagers they had been ordered to attack and later exhibited behavioural problems and psychological difficulties.
The evidence before the court about child recruitment was abhorrent, but abhorrence does not create an international law crime. The principle of legality – the rule against retrospective law-making – requires that a defendant, at the time of committing the acts alleged to amount to an offence, must be in a position to know, or at least readily establish, that those acts would entail punishment, no matter how grotesque they might appear to decent people. That stage was certainly reached by the time the convention establishing the International Criminal Court came into force in 2002, with its prohibition on child recruitment, but in my opinion it had not been reached by 1996, the year that Samuel Hinga Norman was charged with recruiting children to his force, which was defending the government, because at that point no country had made child recruitment an offence. Our court split on this question (my opinion was endorsed by later cases and textbook writers), but the difference did not matter: we were at last, and to this extent unanimously, declaring that henceforth forcing children to fight was an international crime.97
There were more novel decisions: how to deal with a ‘Truth Commission’ which wanted to interrogate our defendants before we could put them on trial; whether to order human rights researchers and journalists to give evidence for the prosecution and to disclose their sources – our decisions on those issues have also found their way into textbooks. At one point, three defendants from the RUF objected to my hearing their appeals because I had previously written critically about this faction (taking my facts from Kofi Annan’s reports to the Security Council). I was happy to stand down from their cases because their defence seemed to be that the RUF had not committed the crimes that Annan and various commissions had imputed to it, so they might perceive me as biased. But they went further and tried to remove me permanently from the court – in which endeavour they failed. At trial, of course, these defendants admitted all the RUF atrocities – their unsuccessful defence was that they personally were not involved.
They might have done better had I heard their appeals. Over the five years I was a member of the court, my colleagues held in favour of the prosecution in every appeal, and I was the only judge to rule, on several occasions, for the defence. I would probably have upheld the appeal of Sam Hinga Norman (and of his co-defendants) had he not died before the verdict. His co-defendants were convicted on the same facts, by two trial judges against one. I had left the court by the time of their appeal, but it always strikes me as a matter of logic that if one of three judges thinks a defendant innocent, there must be a reasonable doubt about his guilt.
Charles Taylor’s trial received more publicity than any other when Naomi Campbell and Mia Farrow stepped into the witness box to tell how Taylor had given Campbell uncut ‘blood diamonds’ from Sierra Leone at a dinner party in South Africa hosted by Nelson Mandela. Taylor had denied being paid in diamonds for the arms he had supplied to the RUF, and had even denied ever possessing them, so the evidence was relevant. Naomi Campbell was a reluctant witness and had told Oprah Winfrey on her TV show that she was afraid to attend, so her appearance was a mark of the authority of the court. Taylor was convicted of aiding and abetting crimes against humanity ranging from terrorism, rape and murder of civilians to recruiting child soldiers and sex slaves. The evidence set out in blood-curdling detail the crimes of the mass-murdering and mass-mutilating rebels he supported, although from his presidential palace in Liberia he had no direct involvement with the atrocities. He knew about them, however, at least from reading newspapers, and he supported the perpetrators with money and munitions. His conviction should serve as a warning to other political and military leaders who send assistance to brutal factions in a civil war, with knowledge that they will use that assistance to commit crimes against humanity.
Taylor’s appeal was given short shrift, and in May 2012 he was sentenced to fifty years’ imprisonment, which he is serving in Britain. I had left the Appeal Court by this time, but I certainly would not have upheld the length of this sentence – as he was sixty-four at the time, he will die well before his release date. Sentencing convicts to serve more-than-life terms is a cruel American habit which is antipathetic to sensible penology – even the likes of Charles Taylor should be sentenced to a prison, not a mortuary.
I served for five years on the UN War Crimes Court and it was not an easy ride. I spent many hours looking down over the endless sands of the Sahara before smearing myself with DEET as we touched down. Petty theft was a daily problem – I had my robes stolen (much good that must have done the thief) and my suit was neatly extracted from its suit-carrier, so I had to appear at the court’s opening in Robin’s ill-fitting clothes. However, I do have some pleasant memories – of the zest for life of the limbless victims, of the court coffee shop, where I could mingle with young lawyers on prosecution and defence teams, and court staff and NGO visitors to discuss the way forward for the global justice movement. And I will never forget the friendship of Robin Vincent.
Every time we visited Freetown there was some improvement – a lick of paint on the customs office, a new newspaper on the streets, a new asphalt road from the landing pad. The court contributed to a reduction in superstition, by putting a feared juju man on trial and showing him to be a fraud – grown men, as well as child soldiers, had believed that the potions of these priests, smeared on their bodies, would protect them from enemy bullets. (General Butt Naked was one of these foolish fighters in Sierra Leone, convinced of his juju invulnerability – his name was adapted for a character in The Book of Mormon).98 It was heartening to see how democracy had begun to take hold among a people who had always enjoyed peace until army coups had replaced the rule of law and tribal rivalries had been whipped up by leaders greedy for power and for diamonds. By putting those leaders on public trial, the court contributed to the peace, and gave some meaning to the slogan ‘No Peace without Justice’.
Sierra Leone also afforded an insight into the practicalities of international justice. It is one thing to write academic treatises on the subject; on the ground, the complexities and challenges are extremely arduous. We were unable to overcome the costs and the delays that have dogged other international courts, but ours was generally hailed as a success, and its ‘hybrid’ model (with a significant minority of judges, lawyers and staff recruited from the locality) is sometimes suggested for other countries. I remain convinced that a war crimes court is most effective if it sits in the country recently torn apart by the war: it becomes one of the institutions that can help put the nation together again.
In 2010, I was invited to Nuremberg’s iconic courtroom by the German Foreign Ministry, which had decided to make it more than simply a tourist attraction: they wanted to fund a centre to promote ‘the Nuremberg legacy’ – putting tyrants on trial for crimes against their own and other people. I sat in my judicial robes on the very bench where the judges had glared at Göring and Ribbentrop, and where Spencer Tracy had been pictured in the movie Judgment at Nuremberg. I was full of ideas of how this historic court could be used to bring the legacy alive: we could televise a mock trial of my relative, the Kaiser, for invading Belgium and ordering unrestricted submarine warfare, or we could arraign some long-dead German diplomats and Turkish politicians for connivance with the Armenian genocide. The dour German officials blanched, more noticeably when I suggested some modern trials, of George W. Bush for invading Iraq, for instance, or Vladimir Putin for aggression in Ukraine. They took fright, and decided that it should be turned into just another un-embarrassing ‘academy’ for academics. I was invited to speak at the opening, where I made one last desperate suggestion – to stage a trial of Sep Blatter for the corruption of FIFA. It was no use. The historic court at Nuremberg will not be the stage for anything interesting any time soon.
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Everyone who hopes for peace and justice in the world pins their faith on the United Nations. The organisation is the best we can do, although it is never good enough thanks to its structural weaknesses, most notably the Great Powers’ veto in the Security Council, which gives Russia and China, and sometimes America, the ability to dishonour their proclaimed ‘responsibility to protect’ victims of crimes against humanity.
I first entered the UN building in New York at the request of its Staff Association. Its members, most of whom had made personal sacrifices to work for the organisation, were not being treated fairly. The internal disciplinary and employment law procedures had not been updated since 1947, management was entitled to behave as it liked, and nepotism – the abiding problem of an organisation with its officials appointed by governments of member states – was rife. I chaired a commission which recommended the appointment of a full-time independent judiciary to deal with all internal problems and to stand between management and staff in order to resolve the frequent internal disputes that were damaging the UN’s work. In 2008, these recommendations were finally implemented and the Staff Association elected me as their ‘distinguished jurist’ member to sit on the new Internal Dispute Tribunal, which would supervise the new system and nominate the judges, chaired by Kate O’Regan, formerly of the South African Constitutional Court.
Our first task was how to have them appointed in a way that would avoid the drawbacks of state nomination. We decided to advertise for candidates internationally in The Economist and Le Monde: they had to have been judges for a decade or so, and to send us examples of their work. This produced about 400 applications. We called the best thirty candidates to The Hague, not only for an interview but also (to their horror) for a threehour examination in which they had to write a judgment on given facts, which would show their juristic ability. It was fascinating to see how the competitive examination, that mainstay of the old English civil service and the merit-based mandarin bureaucracy of China, really sorted the sheep from the goats. Some of these lawyers, although long-time judges in their own countries, seemed unable to write with any clarity. The examples they had sent us earlier must have been written by their clerks or their associates.
The most important safeguard for human rights, both in national and international courts, is access to justice delivered by judges who are both independent of government and impartial towards the parties. By 2017, when I was invited to deliver a keynote speech on the subject at the International Bar Association annual conference back in Sydney, I had become something of an expert. I had successfully defended the Chief Justice of Trinidad when its government tried for political reasons to remove him, reported in favour of the Chief Justice of Sri Lanka when her government impeached her for a decision in favour of the Tamils, and even obtained a Privy Council verdict for a judge who had been unfairly disciplined for drinking.99 I have written extensively on the problems of political appointments to the bench, and on the current danger of populist movements and governments seeking dependent judges – legal lickspittles who will do their bidding. From Poland (where the government intends to sack Supreme Court judges and replace them with cronies) to Venezuela (where hardline judges do the government’s dirty work by ordering the arrest of political opponents) to America (where Donald Trump appoints only judges who share the ‘values’ of his base) to Britain (where pro-Brexit tabloids condemn honest judges as ‘enemies of the people’), judicial independence is under threat. It is ironic that this long-time critic of judges should become their defender, but they are no good at defending themselves and the times call for an explanation of why, so long as they remain impartial, their independence is essential to democracy, no matter how unpopular their decisions.
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As a former UN appeal judge, I sometimes receive requests to investigate and adjudicate quasi-judicial controversies that the UN and its member states lack the political courage to undertake. In 2009, the Washington-based Boroumand Foundation (‘Human Rights and Democracy for Iran’) asked me to report on a massacre of which I had not previously been aware: the mass killing of political prisoners and atheists in Iran in 1988. I conducted interviews with survivors and witnesses in the US and in European cities, examined the Iranian press at the time, and found that these killings constituted the worst crime against humanity committed against prisoners since World War II – comparable in wickedness to the killings in Srebrenica and to the death marches of Australian and American prisoners by the Japanese.
The Supreme Leader of Iran, Ayatollah Khomeini, and his President (and now Supreme Leader) Ali Khamenei had ordered that the many thousands of prisoners in Iranian jails who supported a left-wing opposition should be destroyed. The signal was given and the prisons went into lockdown: these young men and women were blindfolded and ordered to join a conga line which led straight to the gallows. They were hanged from cranes, four at a time or in groups of six; or from ropes in front of stages at assembly halls; some were taken to army barracks at night, directed to make their wills and then shot by firing squad. Their bodies were doused with disinfectant, packed in refrigerated trucks and buried by night in mass graves. Two months later, the same process was applied to male prisoners who were atheists – female atheists were (for abstruse theological reasons) whipped five times a day until they either converted or died. Families were not allowed to know where their loved ones were buried and even today are not allowed to mourn them. Many thousands were killed in this way by Iran’s theocratic state – without trial, without appeal and utterly without mercy.
My report was the first detailed account of this atrocity to be published.100 It identified the perpetrators, many of whom are now in high positions in the Iranian state (the Minister of Justice at the time of writing this was a main organiser). These men deserve to be prosecuted for crimes against humanity, and their interest in obtaining nuclear weapons must be stopped at all costs (even at the cost of maintaining Obama’s Iran deal, which I criticised at the time for not being made contingent on an improvement in the country’s human rights record). I warned about this dangerous theocratic state in my book Mullahs without Mercy: Human Rights and Nuclear Weapons, published in 2012, and my hostility to the regime remains undimmed, notwithstanding the election of a more liberal president – who remains under the thumb of his cruel Supreme Leader and the Revolutionary Guards. I have sometimes found myself acquainted with strange bedfellows – on conference platforms between Rudy Giuliani and John Bolton, for example – but on this subject if on few others we are on the same side (although my reasoning is different).
In 2009, I wrote a book about a very different kind of state – the Vatican, which should not be a state at all – and how it has connived at the torture, through sexual abuse, of children. The project began with a call from Christopher Hitchens, an old friend who knew of my interest in crimes against humanity – I had discussed them in a documentary inspired by his book about Henry Kissinger. What did I think about the reports emerging from Ireland and Boston about paedophile priests and the apparently endemic child abuse in Catholic institutions? Did I think that this might amount to an international crime? I said to Hitch that I would get back to him, and I did, some months later, after studying court reports and the available psychiatric evidence and immersing myself in the mysteries of canon law and the law relating to statehood.
My response was The Case of the Pope: Vatican Accountability for Human Rights Abuse.101 There was no doubt that paedophile priests, and other clergy who took advantage of kids trained to revere them as the agents of God, had bewitched, buggered and bewildered hundreds of thousands of children in their care, in a scandal covered up by bishops and cardinals throughout the world to avoid reputational and financial damage to the church. Overseen by a special commission in the Vatican responsible for canon law (headed by Cardinal Ratzinger, later Pope Benedict), they had kept these crimes a secret from local police, while abusive priests had quietly been moved to other parishes, where they had reoffended.
Pope Benedict had become an enemy of human rights by exploiting the UN decision to grant ‘statehood’ to the Vatican (which did not, in my legal opinion, qualify for it – for one thing it’s a ‘country’ where no children are born, except by accident). He insisted on vetoing all UN initiatives for family planning, contraception, and what he called ‘the sinister ideology of women’s empowerment’. He regarded homosexuality as ‘evil’. He had rallied the Catholic countries of Latin America to make common cause with Muslim states like Libya and Iran to veto, for example, the UN’s projected ‘right to sexual health’. But his responsibility for widespread and systematic child abuse made him a candidate for criminal investigation. ‘Put the Pope in the Dock’ was how The Guardian headlined my findings,102 although I insisted on calling the book The Case of, rather than against – readers could judge for themselves.
My book provided evidence relied upon by the UN Committee on the Rights of the Child, which in 2014 condemned the Vatican for putting children in peril. Ratzinger, the ostrich Pope, retired when he became too old to cope and was replaced by a better man. Pope Francis has not, however, brought in the reforms that are essential if the scourge of child abuse is to be stopped. That will require the church to raise the age of communion and confession from seven (at which age kids are so readily brainwashed into reverence for the priesthood) to thirteen or fourteen, when they are more capable of resisting sexual advances and may have more confidence to report them. It will also require an end to the secrecy of the confessional, as the Australian Royal Commission on child abuse has recommended, at least in respect of priests who hear confessions from fellow priests about abusing children. I have noticed, however, some recent changes – at La Madeleine, the majestic cathedral in Paris, confession boxes have been replaced by glass offices, where priests sit in open view, their hands on the table, to hear confessions.
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Bangladesh is a Commonwealth country where my books are on the law syllabus and my arguments for prosecuting those responsible for the hideous genocide of 1971 have been well received – so well that they have set up the International Crimes Tribunal to try the Islamists who collaborated with the Pakistani Army in killing all the students, intellectuals and teachers who might have led this breakaway state, as well as slaughtering hundreds of thousands of Hindus. I applauded the determination of the government to provide a reckoning, even forty years later, and although the worst culprits were depraved and dissolute Pakistani generals, there is no doubt that they were assisted by members of local Islamist factions, some of whom rose to be ministers in later governments and were now opposition leaders. What I did not applaud was the fact that the ‘International Crimes Tribunal’ has no international judges or lawyers and that it sentences almost everyone it convicts to hang by the neck until they are dead. Most of the defendants are political enemies of the current government, which doubly delights in sending them to the gallows. It was ironic to read the first appeal decision by the Bangladesh Supreme Court, which justified the tribunal’s existence with lengthy quotes from Crimes Against Humanity, yet ended by deciding that all its convicted prisoners should be executed. I wrote a report for a human rights organisation which emphasised the legal and political folly of imposing death sentences.103 (After most executions, there are riots in which numbers of citizens are killed.) My efforts were not appreciated and one minister publicly called on the government to arrange for my ‘punishment’. I am not sure how this is to be administered, but I doubt that I will be returning to find out.
Then there was Sri Lanka, on which I reported for the Bar Association of England and Wales. In 2009, government forces – especially its navy – had launched a massive bombardment of the Tamil community in the north, killing up to 70,000 (mostly civilians) and displacing 350,000. The government of Mahinda Rajapaksa banned the media and denied any wrongdoing, but soon the truth emerged, captured in fleeting and grainy images on cellphone cameras, of summary executions; naked female bodies on the beach violated and drowned; lines of captives in handcuffs, shot where they were standing. The undoubted viciousness of the Tamil Tigers could not justify these government-ordered reprisals against Tamil civilians and my report urged the establishment of a war crimes court. The nation’s Chief Justice had ruled in favour of Tamils in a dispute with the government, and Rajapaksa, in fury, insisted on her dismissal. He had a majority in Parliament and his MPs, lacking all integrity, voted to impeach her on charges which were obviously false and fabricated. The Sri Lankan Navy celebrated her dismissal with a firework display. It was nonetheless an outrageous attack on judicial independence, a value that protects all citizens. My report concluded that she was not guilty of the charges.104 She was reinstated as Chief Justice when Rajapaksa was overthrown, but I felt some sanctions were in order for his MPs who had colluded in her removal.
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I have been involved in designing and participating in court systems that can deliver on the Nuremberg legacy of punishing perpetrators of crimes against humanity. There has been some progress since the Pinochet precedent, but the system’s stumbling block is the inability of the pole-axed UN Security Council to agree on taking action against violating states and their leaders. The worst example is Syria. In May 2011, I wrote an article, ‘Assad Should Face International Justice’, pointing out that the Syrian President’s deliberate decision to use tanks, machine guns and poison gas over seven weeks against unarmed civilians already amounted to a crime against humanity.105 Only 800 protesters had been killed at that stage, but as the toll mounted to more than 500,000 over the subsequent seven years, the Security Council always declined to refer Assad to the prosecutor of the International Criminal Court because Russia blocked any action against its ally.
What is to be done when international law (Article 2(4) of the Covenant of the United Nations) prohibits attacks on sovereign states other than in self-defence, subject (it may be) to a narrowly defined right of humanitarian intervention? Occasional Western air strikes on Syrian bases in response to the use of chemical weapons make no difference, other than to ruffle international relations and increase the resolve of Assad and his people. As for Russia, it is too powerful to attack for annexing Crimea or for assassinating its enemies abroad. The West must find another way, more sophisticated than brute force, which takes advantage of globalisation – the intertwining and interdependence of actors, whether business people, parastatals, corporations or ecumenical churches, or simply family connections. There must be a reckoning for abuses of human rights by sovereign states or sovereign statesmen, and their cronies and supporters and even their fellow nationals may have to suffer for their crimes. Not just by trade sanctions, but by banning them entirely from doing business or using banks, expelling them and seizing their property, and ousting their children from private schools. As a deterrent to commission of crimes against humanity, depriving the criminals and their friends and their supporters of the proceeds, and of their psychological well-being, is a better deterrent than Trump’s preference for bomb craters.
One such measure I have been advocating is a ‘Magnitsky Law’.106 This is named in memory of Sergei Magnitsky, a lawyer and whistleblower who complained to the authorities in Moscow about how companies belonging to his client, Bill Browder, had been scammed by highly placed police and tax officials. Magnitsky was immediately arrested and thrown in prison, where judges ordered him to remain for a year despite serious illness. He was tortured, and died in his prison cell. To be clear, Vladimir Putin – rootin’ tootin’ shootin’ Putin – did not kill Sergei Magnitsky. He was killed by middle-ranking officials of Putin’s corrupt state apparatus – by a criminal gang of policemen and tax officials, with the help of tame judges and prosecutors. The judges were like the train drivers to Auschwitz, turning a blind eye to the inhumanity they were helping to perpetrate, denying bail to a sick man wrongly detained by corrupt police. These criminals and their accomplices were safe in Russia, of course, but that’s not where they wanted to keep or spend the proceeds of their crime. So Browder led an international campaign to stop them enjoying their ill-gotten gains – to freeze their assets in Western banks and deny them entry to countries with the casinos that were their favourite haunts.
President Obama signed the Global Magnitsky Act in 2012, targeting several Russian judges along with the crooked police and tax officials. Putin’s furious first response was to stop the adoption of Russian orphans by American families. Then, more logically, he introduced his own Magnitsky Law, which targeted American officials who ran Guantanamo Bay, although they had no money in Russian banks and Dick Cheney is unlikely to want to holiday in the Kremlin.
A Magnitsky Law cannot reach heads of state or diplomats who enjoy privileges and immunities, but it may deter those who carry out their orders, who profit from crimes against humanity and want to stash their cash in more stable countries where their families can have access to good doctors and Western schooling. The idea is now being taken up by the European Parliament: if you can identify human rights violators abroad, you should act to stop them enjoying their gains in your country, by banning them from entering. Also – and this is important – deny them access to your banks and medical facilities and schools. Of course, normally we try not to visit the sins of the father on the children, but in the case of corrupt and brutal officials, I don’t see why not, because they are very often motivated by a desire to benefit their family. The nastiest man I have ever investigated – an Israeli general who had been profiting from illegal arms sales to the Medellín drugs cartel – once pleaded with me not to name him. ‘I only did it for my family. For the sake of my children.’ If their families are denied medical treatment in the West, if their children are barred from the playing fields of Eton, that seems only fair.
But we cannot pretend that human rights will overcome race venom, or religious hatred, or lust for power or money. It was particularly tragic that the first political protesters to be killed in Syria back in 2011 held banners demanding ‘Assad to The Hague’. Their expectations of international justice were far too high. After a few thousand deaths they turned violent, and were violently supported by al-Qaeda and then by ISIS, while Assad was lent violent support by Iran and then Russia. Now there is no end to the violence, and no end to the refugees (by 2017, half of Syria’s population). ISIS has committed genocide against Yazidis and Coptic Christians, while NATO has been afraid to put boots on the ground. The UN has quietly offered to set up a Sierra Leone-style court in Baghdad to try captured ISIS leaders, but the Iraqi government has refused to cooperate because the court will be unable to pass death sentences.
‘Don’t you despair?’ people often ask. I do not, because belief in human rights takes hold in small places, and slowly spreads, from Nagorno-Karabakh to Norfolk Island. I have observed how far the UK has moved since I began practising here, to embrace ideas that were then barely thinkable. I have seen how the tyrants to whom we once wrote pathetic letters have been arrested for their tyranny; how members of the gay community, discriminated against for so long, are finally allowed to marry; how electronic communication has brought into being the global witness, and I have watched how those of my children’s generation have come to support the rights of people with whom, at their age, I was never concerned. And for all the enormity of our present problems – refugees, terrorism, climate change, Trump et al. – the life I have sketched in this book has left me with faith in the one quality that ultimately identifies us as human. Not our power to speak or reason or love, or to subdue base instincts or achieve autonomy or worship gods, but our counterfactual capacity for kindness. Human rights standards reflect our ability to care for others and for future others. That is why I believe they are worth fighting for.
As for global justice, I have always seen it as a struggle that will continue for many years, as two steps forward are followed by one step back. For fifty years we failed to deliver on the Nuremberg legacy, and only since the turn of the century have we made any sort of start. There is a long way to go, but we will go in the right direction if we maintain the rage against atrocities inflicted on human beings anywhere in the world, and by making sure that the perpetrators do not profit.
Notes
95 For the full story, see ‘The Pinochet Precedent’ in Geoffrey Robertson, Crimes Against Humanity (London: Penguin, 2012), pp. 435–45.
96 Geoffrey Robertson, ‘Robin Vincent obituary’, The Guardian, 22 June 2011; www.theguardian.com/law/2011/jun/22/robin-vincent-obituary, accessed 9 April 2018.
97 Prosecutor Lee Norman (child soldiers case) SCSL-04-14-AR72, 31 May 2004.
98 See Desmond de Silva, Madame, Where are your Mangoes? (London: Quartet, 2017), p. 14.
99 Rees & Others v Crane (1994) 2 AC 173.
100 ‘The Massacre of Political Prisoners in Iran’, 1988 report of an inquiry conducted by Geoffrey Robertson QC (Washington: Boroumand Foundation, 2010).
101 Geoffrey Robertson, The Case of the Pope (London: Penguin, 2010).
102 The Guardian, 2 April 2010.
103 ‘Report on the International Crimes Tribunal of Bangladesh’ (International Forum for Democracy and Human Rights, 2015).
104 ‘Report on the Impeachment of Sri Lanka’s Chief Justice’ (Bar Human Rights Committee, 2013).
105 ‘Assad Should Face International Justice’ (The Independent, 12 May 2011).
106 See Geoffrey Robertson, ‘Europe needs a Magnitsky Law’, in Elena Servettaz (ed.), Why Europe Needs a Magnitsky Law (2013).