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Article Archive


Grobblaar Article

Yesterday's decision by the Court of Appeal to strike down the verdict of a star-struck jury which awarded £85,000 to an obviously corrupt Bruce Grobbelaar was a signal victory for free speech. It should not be misinterpreted as a vote of no confidence in the jury system, currently under sustained attack from the Government, but rather as a demonstration of the urgent need to reform a libel law which gives too great an advantage to wealthy but corrupt claimants.

The most fundamental right of an English citizen is not to be subjected to a prison sentence of more than one year except by the verdict of twelve good men and women and true, satisfied of criminal guilt beyond reasonable doubt. Because any form of human justice is fallible, juries occasionally convict the innocent (a mistake that can be rectified on appeal) and often acquit the guilty, usually because of poor police work or gaps in the prosecution case. In criminal trials, the jury system works tolerably well - certainly better than any alternative. But in libel cases, where liberty is not at stake, they have a difficult and confusing task.

Their confusion stems from the antique rule of libel law that every defamation is presumed to be false, and further presumed to have caused damage. Since a "defamation" is no more than a published criticism which lowers the complainant in the esteem of fellow citizens, libel trials commence with the presumption that the plaintiff has a spotless character and the defendant bears the heavy burden of proving, by admissible evidence, that what has been published is true. Where the source for the story is dead or has been promised confidentiality, that burden is impossible to discharge. Where the evidence comes (as in sleaze cases it often does) from criminals or low-life characters, or even from journalists (who can look fairly grubby in the witness box) jurors instinctively hesitate to find that they have proved their allegations against glamorous film stars or decorated policemen.

Thus in the Grobbelaar case, the Court of Appeal found it understandable that the jury, "skilfully deflected from the path of logic" by forensic tactics was "left undecided about Mr Grobbelaar's story - a result fatal to the defendants upon whom the burden lay". In every other civil action claimants must prove their case in order to win damages: why should libel be any different?

If Grobbelaar had borne the legal onus of disproving The Sun's allegations, he would not have won the verdict, and would in all probability not have had the effrontery to come to court in the first place. The "affront to justice" by the outcome of this trial was not caused by the irrationality of the jury, but by the irrationality of a legal rule that assumes all defamations are false and which forces media defendants to prove them true.

When the dice are loaded against defendants in this way, it is all too easy for juries to be over-impressed by the star quality of the claimants and their witnesses. But equally, the search for truth is often diverted by the obnoxious behaviour of journalist defendants. Editor David Yelland claimed yesterday's decision was a "momentous vindication of The Sun" - on the contrary, the judges spent more space condemning the disgraceful behaviour of his newspaper than the disgraceful behaviour of Grobbelaar. Its investigation was slip-shod and amateurish, its coverage sensational and exaggerated, its "ambush" of Grobbelaar was unfair and its attempts to involve his wife and children were disgusting. For this reason the paper was refused a 'public interest' defence, and any decent group of jurors would have strained to find against it. All the more credit, then, to the judges for putting aside their righteous indignation at the conduct of The Sun, and concluding - as a matter of inexorable logic - that they had nonetheless got Grobbelaar bang to rights.

The Court of Appeal's historic decision - the first time it has declared a libel verdict irrational - is a welcome recognition that juries in this field of law, as in others, can go wrong. This does not mean that juries should be abolished for libel actions (judges are also fallible) but there is room for a good deal improvement in the system. It is absurd, for example, that so many professional people are excluded by law from jury service - doctors, lawyers, dentists, nurses, vets, chemists, the clergy, MPs, peers, officers in the armed services and the like - and that exemptions are so readily granted to anyone in significant employment. In America, there are no exemptions - even judges may be called to serve - and panels are much more representative of democratic society. Instead of trying to cut back on trial by jury, Jack Straw would be better advised to abolish all exemptions and make jury service a civic duty for everyone.

Appeal judges have in the past been reluctant to overturn jury verdicts in libel cases because they have not had the advantage of seeing witnesses testify under cross-examination. This could be overcome - to their benefit, and that of the general public - by allowing television coverage of libel trials. Plaintiffs could hardly object - they demand a public vindication - nor could newspaper defendants who invariably assert a public interest in their stories. It is sad that no George Carman cross-examinations (including his confrontation with Grobbelaar) survive on video tape. If we truly believe that justice must be seen to be done, the televising of libel trials would give the public an opportunity to decide whether there should be a more rational way of balancing the right to reputation with the right to freedom of speech.

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Lockerbie Article

In 1986, Libya was implicated in an atrocity - a bomb at a German discotech. There was no trial, not even disclosure of the evidence: the punishment decreed by Ronald Reagan (with Mrs Thatcher's support) was a bombing raid directed at Colonel Gaddafi. Today, fifteen years on, we have the result of a different approach to suspected State-approved terrorism, a verdict after a fair trial. Since justice is always preferable to a lynching, this must count as progress.

It is not, however, a fully satisfactory result, and it has not been produced without a long and difficult struggle. The mass murder over Lockerbie was perpetrated in December 1988: it was not until 1992 that the UN agreed to impose economic sanctions on Libya and it took seven years before Gaddafi disgorged the two prime suspects for trial under Scottish law at an American air-base in the Netherlands.

Libya's truculance was supported by some countries by reference to the pernicious doctrine of State sovereignty (only a State can try its own officials) which continues to be a stumbling block for the development of international justice. The importance of the trial at Camp Zeist is that it is another precedent, like the House of Lords decision in Pinochet, for the principle of universal jurisdiction. This holds that crimes against humanity are so evil that they must be tried and punished wherever the suspected perpetrators are found, or can be arraigned, irrespective of their nationality or their position in a State apparatus.

The big test for international criminal justice is whether those who administer it can shrug off prejudicial publicity (massive, in the case of the Libyans) and national allegiances and bring down verdicts strictly in accordance with the evidence. Today's decision, which acquitted one of the two suspects, passes that test, and presages a fair trial for the likes of Milosovic and Karadic, despite their demonisation in the Western press. Of the fairness of the trial there can be no doubt - the complaint that the conviction was based 'merely' on "circumstantial evidence" ignores the undoubted truth that this class of evidence, which works logically by inference and deduction, is often more reliable that first-hand memory, confessions that may be tainted and eye-witness distortions.

But human justice of any kind is fallible, and alternative explanations (particularly involving Syria) will be canvassed at the appeal. A more important question, now that the Libyan State intelligence service has been formally implicated, is to investigate and prosecute those more senior than Al-Megrahi who must have given the orders for the Pan-Am atrocity, and probably for the bomb which destroyed a UTA flight the following year. In international criminal law, the doctrine of ' command responsibility' would call for the prosecution of Colonel Gaddafi himself, should credible evidence emerge that he authorised or permitted these outrages. That may be a bridge too far for international justice, at this early stage in its development.

Nonetheless today's verdict marks an important step forward. Libya's involvement in the Berlin discotech bomb has still not been convincingly demonstrated, and the 1986 'punishment' raid looks primitive beside a sentence of life imprisonment on a proven criminal. Fixing responsibility on guilty individuals rather than 'collective responsibility' - punishing an entire people for the crimes of their State officials - is a better way forward for the world.

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Rwanda Article

Nunca Más - Never Again! - is the only possible response to contemplation of last century's crimes against humanity. The first Holocaust Memorial Day rightly recalled Britain's sacrifices to stop Nazism, but paid less attention to failures in combating other genocides, in particular its role in the worst modern holocaust-denial: Rwanda, 1994.

There is, in British foreign policy, a persistent strain of reluctance to punish the authors of genocide, from 1920 when it urged abandonment of trials of Turkish leaders guilty of directing the Armenian massacres to encouraging the absurd 1999 amnesty for Foday Sankoh in Sierra Leone. The preference for expediency over justice was best illustrated in the closing stages of the second world war, when Churchill and Eden vigorously opposed the idea of a Nuremberg trial, arguing that the allies should simply shoot fifty top Nazis and let the rest of Hitler's willing executioners go free. This immoral policy was supported by the Lord Chancellor, Simon, who did not think his judges were fit to try political crimes. It was only at Truman's insistence (with ironic support from Stalin, who supported trials - so long as the defendants were all killed at the end) that the principle of punishing the authors of genocide was established.

Nuremberg and its associated proceedings produced a rule of international law that states have a duty to prevent and punish crimes against humanity - crimes which diminish all human beings by the very fact that fellow-humans can conceive and commit them. That legal obligation was soon spelled out, in respect of the most wicked of all such crimes, by Article 1 of the 1948 Convention on the Prevention and Punishment of Genocide. By this treaty, States pledged themselves to act immediately to stop any systematic attempts to destroy an ethnic or racial group by mass- murder, starvation and the like.

This country was not alone over the next half century in ignoring the implications of the Convention - see it supported the Nigerian war against the Ibo people of Biafra and the rehabilitation of the Khymer Rouge by permitting it to share Cambodia's seat at the UN. But there is no example of British acquiescence in genocide so inexplicable, and so unexplained as the behaviour of John Major's government during the racial slaughter which began in Rwanda on April 6, 1994> This continued for twelve weeks, over which time some 900,000 non-combatant civilians were killed. The daily death rate is estimated at more than five times that of the Nazi concentration camps at their murderous peak. Why did this country, holding a permanent seat at the UN Security Council, turn its back on legal obligations under the Genocide Convention?

The Security Council members took care to meet over the crisis in secret session. But evidence has emerged indicating that the United Kingdom actually led the opposition to intervention in the growing slaughter, on the pretence that what was happening in Rwanda was not genocide. Its central role in persuading the Security Council to deny the holocaust was first exposed by the independent UN inquiry, chaired by Ingvar Carlssen. Drawing upon the Secretariat' s notes of the secret meetings, his report reveals that the UK actually urged a pull-out of the existing but inadequate UNAMIR force, and at the beginning of May (by which time over 200,000 were known to be dead) even rejected a US proposal to send a fact-finding mission to the region.

Worst of all, in Carlssen's view, was the refusal of the permanent members (led by Britain) "to acknowledge that the mass murder being pursued in front of the global media was a genocide". This denial of the obvious is condemned as "deplorable", because it was calculated to avoid "the key international obligation to act in order to stop the killing" under the Genocide Convention. If the British policy to deny genocide in April and May 1994 really had this duplicitous purpose, then it is a great deal more demanding of a formal inquiry than the Hinduja passport.

The cosequence of the failure to strengthen UNAMIR may be judged by the fact that the UN commander on the ground, General Dallaire, estimated (when the death toll was still in five figures) that he could curb it with the addition of 5,500 crack troops. This may have been optimistic, but it does emphasise the importance of assessing the UK's role in rejecting that request and doing nothing to stop the onset of a holocaust. This should, by definition, have been a central concern of any "Holocaust Memorial Day".

The case for an inquiry into the decision-making behind government policy on Rwanda in 1994 is further strengthened by revelations in a new book - A People Betrayed - the role of the West in Rwanda's Genocide by journalist Linda Melvern. She uses leaked Security Council minutes to demonstrate the UK's leading role in rejecting Western intervention urged by the Czech Republic and others in the weeks after mid-April, when Human Rights Watch reminded Security Council members of their obligations under the Genocide Convention. She suggests that parliament was misled by Ministers when Labour finally forced a debate on Rwanda. She quotes our man at the UN, Sir David Hannay, as explaining that he could not decide whether what was happening was genocide because he wasn't a lawyer: "We knew a lot of Tutsi were being killed by a lot of Hutu".

The Memorial Day's motto was "Remembering Genocides. Lessons for the Future". Nuremberg is central to that memory, but lessons will not be learnt until we have a full inquiry into whether, and if so why, our foreign policy abandoned obligations under the Genocide Convention to the people of Rwanda. Some explanations are easier than others: the Clinton administration, obsessed by the Mogadishu disaster, refused to contemplate another African intervention and collaborated in the pretence that genocide was not happening: it was 'tribal violence' or "the break-down of a cease-fire agreement". Did the US dictate the British response? Was there an intelligence failure, some subconsciously skewed perception which could recognise as genocide the 'ethnic cleansing' in Yugoslavia but not "black on black violence'" in Africa?

There is another reason for a British inquiry. President Clinton in 1998 fulsomely apologised for the Anglo-American position ("We did not act quickly enough after the killing began…we did not immediately call those crimes by their rightful name, genocide. Never again must we be shy in the face of the evidence"). But there was a chilling exchange in the second presidential debate when George Bush disagreed with Al Gore's admission of this mistake: Bush thought the Rwandan genocide really was beneath US notice. Unless he changes his mind, there may be more holocausts to remember on the Holocaust Memorial Days to come.

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Bulletin: Federation

Pauline Hanson is the modern politician who most closely resembles our founding fathers. Federation was forged not from any belief in human dignity or liberty, but in an obsession with racial purity: the felt need was for a common barrier to stop Chinese immigration and the importing of Kanakas by Queensland planters. Perhaps it's time for a nation which has recently saved the credibility both of the United Nations (over East Timor) and of the Olympic Games to turn its genius to redressing the most fundamental failure of its founders: their opposition to human rights.

That a bill of rights did not feature on the agenda of the 1890s Conventions is hardly surprising - the federation movement was not a struggle against tyranny but a matter of economic and strategic sense encouraged by the British Colonial Office. An attempt at the 1898 Melbourne Convention to inject into the draft of the Australian Constitution those great U.S. guarantees of equality and due process was rejected after Isaac Isaacs warned of the 'danger' of ending discrimination against Chinese workers, while Sir John Forrest openly spoke of the 'great feeling' Australians had against 'coloured peoples'. Aborigines were mentioned only as a part of the fauna, a sub-human species denied the most basic right of being counted in the census.

What should distress modern Australians is not so much the virulence of the racism which infected our founding fathers as the fact that it blinded them to the advantage of adopting, like the U.S, a code of universal human values, a bedrock of principles upon which Australian law could develop logically and humanely. Instead, at the insistence of the British Government, they kept the English law lords (sitting in the Privy Council in Downing Street) as Australia's final court of appeal. This meant blind adherence to English common law, made up of rulings given by its judges down the centuries: the only 'rights' that common law fully protected were to property and its continued possession by the upper classes.

In the result, Australia was endowed with a supreme law - its Constitution - which lacked any systemic protection for citizen liberties. Australian constitutional law is all about demarcation of State and Federal power - a matter of no relevance to anyone outside Australia and largely incomprehensible to anyone within it (other than to constitutional lawyers). The dominance of the Privy Council (incredibly, it was not finally abolished until 1986) meant adherence to the common law tradition, which develops by painstaking and obsequious regard for previous court rulings, treated as precedents controlling subsequent decisions.

That a system based on precedent delivers much less justice than a system based on principle has recently been acknowledged by Britain, which has adopted the European Convention of Human Rights to provide its constitutional bedrock. Canada, South Africa and even New Zealand have already adopted similar legislation. Australia is now left behind, as the only advanced democracy in the world which offers no constitutional protection for the rights of its citizens.

The reason this matters is that without an organising system based on universally recognised values, Australian law is becoming inaccessible and incomprehensible. It's a jumble of statutory rules and precedents extrapolated from a forest of loose-leaf casebooks or (increasingly) from torrential computer print-outs. The essential quality of law - citizen understanding, leading to citizen trust - is being lost.

On a sociological level, this means that the law makes inadequate contribution to culture and to national identity. There is nothing about human liberty in our constitution that we can point to with pride, or happily invite our children to recite.

Moreover, human rights jurisprudence is of increasing international importance as a measure of a country's commitment and freedom. The courts of advanced democracies vie to elucidate the common principles of justice contained in their constitutions. In these legal olympics, the dominance of the U.S. Supreme Court is currently challenged by the South African constitutional court and by the newly empowered British law lords. Without a bill of rights as their starting block, Australian judges - intellectually, among the world's best - cannot compete begin to compete

Politicians Jealous of their own power oppose the idea of granting legal rights to citizens. Jo Bjelke-Peterson claimed homosexuals would run naked in the streets, and even Bob Carr has warned that a Bill of Rights would be "rorted by lawyers" - ignoring the fact that a rights-based system affords the best protection against sharks and pettifoggers. As Tony Blair has pointed out, the idea of giving courts more power to do justice should be threatening only to those politicians and governments who fail to deliver it.

One hundred years have passed since Federation: do we still have no statesmen, or sateswomen, farsighted enough to vouchsafe constitutional human rights to all Australians?

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Milosevic
The Guardian, June 2001

The proceedings which begin next week at the Hague will doubtless be dubbed "the trial of the twenty-first century". But they will be as much a trial of the fledgling system of international criminal justice as they will of Slobodan Milosevic.

There is no true precedent for a trial of a former Head of State on charges of committing crimes against humanity. Nuremberg was not an international court, because the judges were all from the "big four" victor powers. The Hague Tribunal has thus far convicted only soldiers who raped and killed and tortured, or the Generals who gave them their orders - not politicians alleged to bear responsibility for atrocities they failed to prevent or for genocides of which they are loosely said to be the "intellectual author". The Hutu ministers jailed by The Hague's offshoot tribunal in Arusha have mainly pleaded guilty, in order to avoid the death penalty which would be imposed if they were tried in Rwanda.

The case against Milosevic is at present confined to several hundred Serb killings in Kosovo, but is certain to include a further indictment alleging genocide for ethnic cleansing in Bosnia, beginning with the Vukovar hospital massacre in December 1992. It is based on the legal theory of "command responsibility", which fixes a superior with criminality for failure to take "necessary and reasonable steps" to prevent or punish crimes against humanity which he knew were being perpetrated. This doctrine stems from the US Supreme Court decision which approved the Tokyo trial conviction of General Yamashita. It is correct in principle, but all too easy for a partial court to misapply in practice: Yamashita is now accepted by historians as the only Japanese General who genuinely did not know that his troops were running amok, and his execution appears in retrospect as a miscarriage of justice.

This fact alone focuses attention on the identity and nationality of the international judges - the three who will preside at the trial and the five who will decide the inevitable appeal. The first tactic of Milosevic's lawyers will be to object to judges from NATO countries, deploying as their precedent the House of Lords ruling which disqualified Lord Hoffman in the Pinochet case because of his connection with Amnesty. The judges of The Hague Tribunal have thus far shown no bias for or against the Serb and Croat commanders they have convicted (and in a few cases, acquitted) and Milosevic's indictment was approved by David Hunt, an experienced Australian criminal trial judge - but even so, it was irresponsibly denounced as 'political ' by the governments of Greece and Russia.

This foreshadows the first big test for international criminal justice: can its judges rise above the politics and policies of the Governments which appoint them? The record of the International Court of Justice has not been reassuring - the decisions of Russian, American and Chinese jurists in particular have tended to reflect national policies. But there are signs of a new breed of truly independent global judges, especially at the European Court of Human Rights (where the UK judge is particularly celebrated for his willingness to find against the UK). In the Milosevic case, the court's first problem will be whether to insist on the independence and impartiality of all its judges, or to put together a special tribunal comprised of judges whose countries took no position for or against the NATO bombing.

Milosevic cannot claim, as did Pinochet, that as an ex-Head of State he has sovereign immunity, because this is expressly excluded by Article 7(2) of the Hague Tribunal Statute. His defence to the allegation of command responsibility for the Kosovo massacres will have to be that he knew nothing about them. Most (but not all) took place after NATO began bombing, one action which his lawyers will certainly try to argue was an unlawful attack on Serbian sovereignty. For this proposition, with its potential to embarrass NATO, they will doubtless quote the dubious conclusion of Donald Anderson's House of Commons Select Committee, which failed to recognise the international law right to breach sovereignty in a humanitarian emergency, or in order to prevent or punish an ongoing crime against humanity. The court may not find it necessary to rule on this issue, because it can never be a justifiable act of self-defence to massacre innocent civilians in reprisal for an unlawful attack.

One projected defence which will not get off the ground is the claim that his extradition to The Hague was a ransom for aid money and contrary to the Serbian Constitution. Every state has an international duty to try those accused of crimes against humanity or to extradite them to a forum which will conduct a trial. Eichman was kidnapped, the Lockerbie defendants were extracted as a direct result of sanctions on Libya, and General Blastic (sentenced to 45 years for ordering the destruction of Serb villages) was sent to The Hague by Croatia in return for a large US loan. This dawning 'age of enforcement' of human rights, prosecution has a 'catch as catch can' quality: Milosevic's guilt for early atrocities in the Balkans may be no greater than Tudjman's , who died unindicted. But the substantial evidence that he bears at least some responsibility for a war that raged for seven years and lost a quarter of a million lives demand judicial assessment, irrespective of how he comes to the court.

That war, which he allegedly waged through Bosnian Serb surrogates, will be the subject of a new Milosevic indictment for genocide. Sensibly, this would be tried after the Kosovo charges. His defence will be to lay all the blame on the Bosnian Serbs, which makes it crucially important to lift Karadic and Mladic so that they can join him in the dock, perhaps to run the 'cut-throat defence' familiar among co-conspirators at the Old Bailey, and which usually results in all being convicted. If he is convicted, he cannot receive a sentence less than Blastic, and that means life imprisonment from which he will never be released.

However, the conviction of Slobodan Milosevic is far from a foregone conclusion, and his trial may yet provide ammunition for the western diplomats and Pentagon generals who are opposed to the very idea of international criminal justice. Churchill demanded summary execution of Nazi leaders, fearing that they would exploit the Nuremberg trial as a soapbox, or else it would make them martyrs. (He was outvoted by Truman, who had an idealistic faith in justice, and Stalin, who loved rigged trials where every defendant was shot at the end.) Nuremberg succeeded for two reasons: it was conducted fairishly (several defendants were acquitted) and it provided an imperishable factual record to confound future holocaust-denials.

The task of The Hague Tribunal in proceedings which will last for several years, is to rise above the triumphalism at Milosevic's arrest. On its capacity to give fair trial depends the case for an International Criminal Court. It must not shrink from acquitting Milosevic if the evidence fails to establish his guilt beyond reasonable doubt.

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The Times Diary 26.07.01

The definition of an optimist is a man who buys a ticket for the final day of a test match between Australia and England.

That's how my week began, seeking a refund at Lords, The free Monday was spent researching a book about the life of England's most courageous Solicitor-General (no, not Harriet Harman - well not yet, anyway). His name was John Cook, and he stepped forward when others quailed to accept the brief to prosecute Charles I - the first ex-Head of State to be charged with war crimes against his own people. Talking later in the week with prosecutors in the Hague, I am struck by the way Slobodan Milosevic has opened with the King's gambit: refusing to plead, on the ground that the court is unlawful.

Back in 1649, Judge Bradshaw made the mistake of treating this as a plea of guilty, so Charles was speedily ex-Headed without examination of the evidence against him - an oversight which greatly helped his posthumous image as a holy martyr. Richard May (from the same circuit as Bradshaw) has not made the same mistake: if Milosevic perseveres in his defiance he will spend the next five years sulking in his cell while the evidence for his guilt is painstakingly analysed. I suspect that the temptation to strut the forensic stage and embarrass NATO will prove impossible for him to resist.

There is another historical parallel. Herman Goering opened with the Charles I gambit at Nuremberg. He planned to address only three words to the tribunal - not "that's your problem" but a phrase borrowed from one of Goethe's warrior heroes which loosely translates as "kiss my arse". However, during the months of pre-trial preparation, he was sucked into the adversary dynamics of the Anglo-American trial. He did rather well at first in the witness box, making mincemeat of his American cross-examiner, before collapsing under the weight of his own signature on 'night and fog' decrees. I suspectng is that Milosevic, like Goering, will eventually decide to play the justice game.

I fear that his trial will lack majesty, however, whether he's present or not. These small, strip-lit courtrooms are a far cry from the atmosphere of Nuremberg or Westminster Hall. They are located in a nondescript building (formerly insurance offices) and entered from a Plaza named after Winston Churchill - ironically, since he was all for shooting, rather than trying, the Nazi leaders. (He was outvoted by Truman, who believed in justice, and Stalin, who loved show trials so long as all defendants were shot at the end.)

The Hague at present is deluged by defence lawyers from all over the world, flagrantly chasing the Milosevic ambulance. First cab off the rank was LBJ's Solicitor-General, Ramsey Clark, whom my generation should never forgive for prosecuting Dr Spock. There are better choices, and speculation is rife. I've just received an invitation to Mike Mansfield's 60th birthday party, to be held, tantilisingly, "at a secret location". Will we be bussed to the Hague to meet his new client?

***

In my anecdotage, I shall remember where I was when I first heard the news of the shooting of Kennedy and the jailing of Archer. But I can see no point in stripping the vainglorious prat of his title, except perhaps at the request of the long-suffering citizenry of Weston-Super-Mare. What irks me about the massive media schadenfreude is that it has completely missed the point. Archer's conviction is not evidence for the existence of God: it is evidence of the need to reverse burden of proof in libel actions.

Archer did not, in fact, win that 1987 libel action because of the evidence he fabricated. He succeeded because of the absurd legal rule which presumes that every defamatory statement is false - and hence places the burden of proving it true on the media defendant. There is no other rule of law responsible for producing so many miscarriages of justice, from Liberace's colossal damages for the true suggestion that he was homosexual to the £80,000 won by Bruce Grobbelaar and recently overturned by the Court of Appeal. The courtroom career of Robert Maxwell proved emphatically that this is a country where you can't keep a bad man down - as a result of the rule that you bear the burden (and the cost and the risk) of proving the truth about them when they sue.

Defamation is the only civil wrong which places the burden of proof on the defendant, and this is the reason why American courts refuse to enforce English libel awards. If we really want to enjoy free speech - as distinct from expensive speech - we must make libel claimants prove their case. There could be no more fitting memorial to the life and crimes of Jeffrey Archer.

***

School holidays bring a cultural sea-change. Goodbye to the chocolate box sets and departure lounge ambiance of the Kirov at Covent garden; welcome to the peanut and popcorn gallery of the local cinema for Lara Croft. Having been ravished in the front row by Preziosilla (Ekaterina Semenchuk - a mezzo to live for) this ageing dad was unmoved by Angelina Jolie's nubile Lara. The gamegirl story had a witless script: the biggest laugh from the audience came at the beginning, when under the squiggle "Andreas Whittam-Smith" appeared the age classification - 12.

The laughter makes a serious point about the sacred cow of film censorship. In other countries parents can choose their children's films - age classification is advisory. In our nanny state, however, cinemas face prosecution (though parents do not) and loss of license. Lara Croft's one useful message - girl triumphs in boys' fantasy world - is suitable for children under 12, just as Billy Elliot can be inspiring for sensitive kids younger than its 15 certificate. Most parents would be thrilled if their fourteen year old took an interest in Shakespeare in Love (15) or if their 16 year old wanted to see The End of the Affair (18). What is Mr Whittam-Smith afraid of - that they might be tempted into reading Shakespeare or Graham Greene?

***

What's in a name? A good deal of confusion, if it's anything like Geoffrey Robertson. I received a letter of congratulations from the Antiguan Government on my appointment as Treasury minister, I've been teased about my off-shore trusts on a book tour of New Zealand, and I once had David Puttnam sell me a film scheme over the telephone before realising he had mis-dialled. My near-namesake's departure from office has brought no relief. At last week's convivial summer party at No. 11, I was at the foot of the stairs when David Blunkett and his canine companion descended. "David, this is Geoffrey Robertson," said mine host. "No it isn't," scoffed the Home Secretary. "Geoffrey Robinson's upstairs. And I've been introduced to him twice already this evening". Fellow feelings, then, to Geoffrey Archer, the former ITN defence correspondent, who is a rather good novelist.

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World Bank Seminar on Legal and Judicial Development

How does the Media Support the Reform Process?

The assumption behind this conference is that justice matters. It matters to rich and poor and to high and low alike; all and sundry must be guaranteed access to a court system for settlement of disputes quickly and fairly. In a functional, work-a-day sense, the law is the mechanism for reducing the level of grievance in any society. Unless there is confidence in the system itself, both in its rules and in the officials who apply them, then anxiety and bitterness will breed discontent and resort to bullying and intimidation - a situation where the weak have no protection against the powerful. Justice, in any society, must arm the weak with the possibility of winning against the strong, even against the State itself.

Although justice is for most of the time a work-a-day matter of finding the appropriate rules for settling disputes and resolving grievances and trying accused persons with basic fairness, no justice system can be worthy of that name unless it provides for judges who are independent of the State which appoints them, operating without any pressure to decide cases in favour of Government. For such 'David and Goliath' contests, there must be safeguards for judicial independence - bearing in mind the need for openness, the need for accountability in the exercise of power and expenditure of public money, and the need for informed public confidence in judicial officers.

The fundamental principles which must guide legal and judicial reforms in every country are to be found in the Universal Declaration of Human Rights, 1948, notably Article 7 (protection against discrimination), Article 8 (the right to an effective legal remedy), Article 9 (the rule against arbitrariness), Article 10 (the right to a fair and public hearing by an independent tribunal) and Article 11 (the presumption of innocence, expanded in terms of defence rights by Article 14 of the UN Covenant on Civil and Political Rights). These principles have become, in the view of most scholars, binding rules (or 'norms') of international law, with what is termed a 'jus cogens' force - i.e. 'a rule accepted and recognised by the international community of states as a whole from which no derogation is permitted' (see Article 53 of the Vienna Convention on the Law of Treaties).

The task for all states is to erect and maintain justice systems according to these principles - not an easy matter even for the wealthiest and most advanced democracies, as recent decisions of the European Court of Human Rights against Britain, France, Denmark etc. attest. For under-developed countries, or those lacking (or transiting to) democracy, legal systems often fall abjectly short of these fundamental requirements. Progress depends in part on resources and in part on government resolve, but the role of the media is important too, both in spotlighting defects in the system and in raising critical consciousness of the need for reform. To this end, the media's role is supported in international law by Article 19 of the Universal Declaration (supplemented by Article 19 of the Covenant, and equivalent articles in regional human rights treaties and in many national constitutions) promising that

'Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers'.

This right is not absolute, as (absent of malice) is the free speech right in the first amendment to the US Constitution. However, it may be said that international law provides a presumption in favour of free speech, which may be overridden only on clear proof that it is outweighed by a countervailing public interest - e.g. in national security or protecting individual reputation from unjust attack or in maintaining the authority of the judiciary. I shall argue in the course of this paper that the media in many countries, and especially those with common law traditions, is unnecessarily constrained by these exceptions, owing to the failure of national courts to interpret free speech guarantees liberally enough to open themselves up to public criticism.

The right to freedom of expression is fundamental to democratic society. It is an essential human right which must be guaranteed to every citizen, and even to non-citizens, in respect of opinions however shocking or unattractive. That is why it must be protected by laws which are up-to-date, workable and comprehensive, and which contain only such exceptions as are necessary to protect other values in a free and fair society. That there must be some exceptions admits of no doubt: there can be no freedom (as a great American judge once pointed out) falsely to shout 'fire' in a crowded theatre: people may be killed in the panic to escape. Since the free speech principle is grounded in the public interest, it must give way on occasions when the public interest points the other way - to secure a fair trial, to protect citizens against damaging falsehoods or unwarranted invasion of their privacy, to prevent incitement to racial violence or breaches of vital national security. The exceptions should be embodied in laws which are narrowly and carefully defined.

So far as the government and the judiciary are concerned, the media's job is faithfully to report their decisions, and to analyse them and criticise them for any perceived mistakes. Law should hold the balance, and enable both the media and the government to do their jobs, permitting that 'creative tension' between them which is an incident of every healthy democracy. The law should provide the media with machinery to access official information and encourage it to expose malfeasance and corruption, while at the same time providing the authorities with power to punish or stop media behaviour which imperils national security or undermines the democratic fabric or propagates 'news' which is false or inaccurate. Media organisations and the journalists in their employ sometimes forget that they themselves exercise a form of power when they use their right to free speech to criticise others, in print or on television, so they too cannot be immune from criticism e.g. for dishonesty or bias on unethical behaviour. The law in a progressive society should therefore conduce to healthy and informed and responsible criticisms of journalists and editors, especially since the right to free speech permits them, necessarily, a certain amount of unhealthy, ill-informed and irresponsible criticism of politicians and judges and other wielders of power.

It must be accepted that defects in a justice system are often not as apparent, and certainly not as emotionally moving, as the results of genocide and torture and other familiar human rights violations. While there are blatant examples, such as secret or 'kangaroo' courts, matters such as judicial corruption or susceptibility to political pressure require sophisticated 'behind the scenes' investigation. This calls for reporters who are knowledgeable about the law itself as well as its systems and personnel, and for editors and proprietors who will not buckle under Government threats to put them in jeopardy before the very judges they have criticised. It also requires a degree of transparency in the justice system, including a willingness by its professional denizens to open their rituals and practices to public scrutiny and complaint. It also calls for media practitioners who are skilled not merely in reporting the courts, but in presenting legal cases in comprehensible and interesting ways.

It has to be acknowledged that this range of media expertise is lacking, to a greater or lesser extent, in every country other than the United States. There, the commitment to democratic transparency at every level of the justice system and the reporting freedom provided by the first amendment has produced a reasonable level of media interest in and exposure of systemic defects and the need for reforms. Whether seen in examples of widespread public discussion of court cases and appointments, or in legal magazines and the Court TV channel, the media is able to provide the public with the evidence it needs to assess the workings of the legal system. This does not of course mean that the legal system is above reproach - far from it, as the state of many US prisons and the barbaric implementation of the death penalty attest. But this results from popular choices made by those elected to public office - the media is able to inform that choice, and does so in a reasonably insightful and accurate way. The problem in other countries is to equip the local media (and the international media, in some respects) both with the expertise to report on the legal system and with the right to publish reports on it which are adverse.

Training journalists to a familiarity with law and legal procedures is not undertaken by many media groups, and although 'media law' is a module in many communications courses it generally covers only the laws which impact on professional writing. In some countries the more serious media employ legal commentators and carry contributions from practising lawyers arguing for specific reforms, but it is rare to find articles or television programmes which investigate the legal system or expose judicial corruption. Those which do run a very high risk of litigation, since lawyers are prone to sue to protect their reputation and judges in many countries have power to punish their critics for contempt of court. One notable example was an article in an international legal journal a few years ago which alleged improper behaviour in a number of commercial cases decided by a group of judges in Malaysia. The publishers received a flurry of suits from both the lawyers it named and their clients, while the concerned individuals who were quoted in the article were also sued for libel. Very heavy damages were awarded against one (the secretary of the Malaysian Bar Association) while another (Param Cumeraswamy, the UN Rapporteur on the judiciary) had to have the libel action against him removed to the International Court of Justice to establish his immunity from suit. This case provides a good example of the difficulty even for international publishers of conducting a thorough investigation of allegations of corruption within a national legal system.

It might be expected that support for such investigations would come from professional associations and especially from the International Bar Association. Regrettably, these tend to be supportive of lawyers: the IBA is quick to protest where the human rights of any of its members are threatened, but has done nothing to encourage critical examination of the way certain of its members operate in ways which are contrary to the public interest. It has not supported examinations, for example, of the judicial corruption which in some countries is institutionalised, although this is partly the result of low judicial salaries. Given that the legal profession in any given country will have a vested interest in maintaining the status quo, this is further proof of the need for an active and informed media which can operate without unnecessary constraints in its coverage of the legal system.

If the media is to play its proper role as a watchdog over the justice system, it is vital that national laws should give it protection from reprisals. Although some constraints are necessary to secure the fairness of trials, and to safeguard individuals from invasions of their privacy or reckless attacks on their reputations, these should always be proportionate and must not have a chilling effect on public interest journalism. Regrettably, many if not most countries have in place laws and punishments which do exert such a chilling effect. Examples include:

1. Laws which provide for the jailing of journalists.
Progressive societies no longer send people to prison for what they write or publish. But many legal systems still threaten - and sometimes impose - imprisonment for crimes of sedition, insulting officials, contempt of court, criminal defamation, inciting disobedience and spreading false news. Such punishments are usually unnecessary and disproportionate, except in cases (the broadcasting of Radio Mille Collines in Rwanda, for example) where incitements to serious crime or race hatred are concerned. Penal laws against the press are otherwise unnecessary and undemocratic.

2. Laws or courts which impose massive fines or damages on the media.
There is a tendency for libel damages in many systems to be 'at large' - i.e. at the discretion of the judge or the jury. The result can be bankruptcy for the journalist or liquidation for a publishing company, as the result of a single error. Media operations are such that some errors are inevitable: there are means of correcting them and compensating for them that do not have a chilling effect on future investigations. The European Court of Human Rights has ruled (in Tolstoy v. UK) that damages (in that case, of over US$2 million) should be moderate in media cases.

3. Licensing or restricting publication
This is the most common form of censorship. Although licensing can be justified in some circumstances - e.g. for radio and television stations - it should always be conducted according to fair and rational rules, and never be used as a means of silencing critics of official conduct. There can be no justification for limiting licenses to government channels, or to publications which support the government. The behaviour of the Singapore government in punishing international newspapers for criticising Singapore courts or politicians by limiting their circulation to a small number of copies is objectionable on this score.

An unattractive consequence of wide variations in press laws across the globe is that wealthy and powerful 'public figures' seek out the forum which has the most plaintiff-friendly law for their actions against newspapers, books and magazines which are distributed for worldwide sale, as well as against satellite television and the Internet. (The favorite forum at present is the UK, which places a heavy burden on the media to prove the truth of the stories and permits libel actions if only a few copies of the offending publication are circulated within the country). This ability to forum-shop for the jurisdiction which is least tolerant to free speech should be curtailed: in a global village it makes no sense for the new breed of 'international' public figures to enjoy different reputations in different parts of town.

Article 19 of the Universal Declaration bestows a right to 'seek' information as well as to receive and impart it. This must imply more than a right to ask questions, and may be used to support three implications of the Article 19 right:

(1) to impose duties on governments to divulge information;
(2) to protect whistleblowers who breach secrecy laws and employment contracts in order to speak out, in conscience, from within a government agency; and
(3) to permit journalists to refuse to divulge their confidential sources for stories, no matter how much the identity may be of interest to police or security services, or to government or courts or big business.

In this last respect, in 1996 the European Court held in Goodwin v. UK that the right to freedom of information carries the implication that journalists must be permitted to protect their sources, otherwise there would be no information to be free with - sources of news would 'dry up'. It has yet to consider the case of the whistleblower (who might enjoy additional support from the 'freedom of conscience' guarantee in Article 18). Freedom of information legislation is common enough in advanced political systems, where it is seen as a part of the definition of democratic culture, bolstered by reference to the 'democracy rights' in Article 21 of the Universal Declaration of Human Rights, including the right to participate in government and to have 'equal access' to the public service.

Many states are at present trying to restrict access to the Internet, either by criminal laws which prohibit it entirely (in Libya, Iraq, North Korea, Burma and Syria) or by controlling a sole service provider (in Saudi Arabia, all traffic goes through a ministry which disallows access to sites offering 'information contrary to Islamic values'). A similar 'firewall' has been erected by China, not only to stop information coming in other than through the official gateway, but to stop 'official secrets' (i.e. criticisms of the regime) being e-mailed abroad. China's surf wars are fascinating to watch, given popular expertise with the technology: the Falun Gong cult was banned more for its ability to organise demonstrations by e-mail than for its meditation techniques.

To enable the media to give greater support to the process of law reform it will be necessary to remove or mitigate some of the deterrents to investigate coverage of the extant system. This will mean reforming laws which provide for prison, heavy damages and licensing and also narrowing somewhat the exceptions to the free speech principle. In countries (there are 50 or so) which base themselves on English common law, that will mean reforming the law of libel so that the burden of proof is placed on the plaintiff and unfair presumptions - that a plaintiff is of good character, that every defamation causes damage - are removed. The advent of a Bill of Rights in Britain, with a free-speech guarantee, had already produced (by judicial creation) a new public interest defence.

But where coverage of the courts is concerned, local laws must rigorously uphold the 'open justice' principle, which is based on the notion that justice is not done unless it is seen to be done (as Jeremy Bentham put it, public access to courts 'keeps the judge, while trying, under trial'). This transparency must extend to the court file - all pleadings and evidence submitted should be open to public scrutiny. There should be obligations upon Chief Judges to present annual reports of court performance.

The challenge is two-fold: to the media itself, in equipping its practitioners with the skills to understand and explain to the public the importance of having an advanced justice system, and to governments and legislatures and courts in appreciating the importance of giving the media more freedom to investigate and expose, however uncomfortable (and, sometimes, erroneous) the conclusions of its investigations may be. Legal systems must themselves be more transparent, and more welcoming of media scrutiny on the principle that justice must be compatible with fair trial rights as well as the right to freedom of expression. It is a power which is necessary for 'maintaining the authority of the judiciary' - that authority is not maintained by a power to jail critics.

The performance of the media in supporting judicial and legal reform varies from country to country: the only generalisation that can be made is that it is uneven and underwhelming.

The time has come also to give attention to the scope of the power of courts to punish their own critics. The English common-law offence of 'scandalising the courts' remains a crime in many Commonwealth countries (in Scotland it is known as 'murmuring judges') and the punishment of journalists who allege corrupt behaviour by judicial officers. It has been invoked recently in Kenya, Ghana, Mauritius, Singapore and Malaysia (where it was used last year to jail a Far East Economic Review reporter, Murray Hiebert, and against several of the barristers defending Anwar Ibrahim). It permits judges, in effect, to act in their own cause, and is thus seen in order to be done.

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What spectacle awaits the world: an Afghanistan carpet-bombed from 15,000 feet, with a consequent refugee crisis and jihads galore, or Osama bin Laden sharing a cell in the Hague with Slobodan Milosevic? The choice between revenge and justice has never been more stark, or more difficult.

While media attention focuses on commanders in green lumber jackets planning a campaign of retaliation, the less telegenic logistics of international criminal justice have been overlooked. Yet this preferable alternative is partly in place and requires only an imaginative leap by the US Government to attach its military might to a movement it once unthinkingly opposed, but which now provides the most acceptable way forward.

The Security Council is empowered under Chapter VII of the UN Charter to declare last Tuesday's atrocity to be a threat to world peace and to bring its perpetrators within the jurisdiction of the Hague Tribunal, which at present only punishes international crimes committed in former Yugoslavia and Rwanda. Last Tuesday's atrocity should be declared not an act of war but a 'crime against humanity' since it precisely satisfies that definition - a systematic attack deliberately directed against a civilian population involving acts of multiple murder. Treating this terrorism as an international crime would give much needed legitimacy to the proportionate use of US force to bring the prime suspect to justice.

A special prosecutor can be appointed to head an international team of investigators to present evidence collected by the US and its allies to an existing panel of international judges (some from Muslim countries) at the Hague, under protocols which already guarantee fair trial. US military and economic power can legitimately be used against the Taliban to oblige the extradition of bin Laden and his lieutenants, and to access (if need be, by armed incursions) the camps and hideouts reasonably believed to yield evidence of his guilt.

Support for the US is at its zenith in the Security Council: even China, the most obsessive defender of state sovereignty, could hardly veto a resolution approving the use of force, if extradition demands fail, to arrest a suspect for trial by a court upon which it is represented. The Taliban initially agreed to surrender bin Laden for trial by an 'Islamic court' - it invites armed reprisals if it objects to a UN Tribunal which has judges from Islamic countries.

This would involve a US compromise as well - but one that would recognise that bin Laden could not be fairly tried by a New York jury, too emotionally involved in the crime. (In Britain it was always recognised that IRA defendants should not be put on trial in the cities they were accused of bombing). A reasoned judgment from international jurists is perceptually preferable to a monosyllabic jury verdict in these circumstances. There could be no objection to an American special prosecutor - a post-mayoral Rudy Guiliani, once the courtroom scourge of the mafia, would be an appropriate choice - or even Kenneth Starr.

The problem, which must not be underestimated in light of American political promises of a quick fix, is that the wheels of Hague Tribunal justice grind slowly. That is partly a result of the shortages of money and manpower, which US commitment can remedy. Advocates of an international justice solution must also confront the irony that its greatest opposition to date has come from the Pentagon and the Jesse Helms faction of the Republican Party, which have demonized the UN Treaty to establish an international criminal court. Hopefully their opposition to a development which offers some long term deterrent to terrorism will be muted once the ICC remit includes crimes against humanity committed by organised terrorist groups. But the ICC will not be up and running for another year - in the meantime, the option of having the Security Council refer the case of Tuesday's crime to the Hague Tribunal is both available and capable of speedy implementation.

In the three years since the arrest in London of General Pinochet, advocates of an international criminal justice system for human rights abuses have learnt to think the unthinkable. Economic and military sanctions have delivered up Milosevic, some Srebrenica commanders, the authors of genocide in Rwanda, and the Lockerbie suspects. Trials are promised for Khymer Rouge commanders and for some of the killers of East Timor. Once last Tuesday's outrage is recognised as a crime against humanity, the nature of the US response becomes clear. Its purpose must be to put the prime suspect in the dock, not in a mass grave.

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America is wrong to shoot first, then ask questions about guilt later 26th Sept 2001

"Infinite Justice" made no sense as a brand name for an operation to attack Afghanistan, because human justice is both finite and fallible. More importantly, it begged the question, which our leaders must urgently address, of exactly what "justice" they propose to afford their prime suspect. The saloon-bar poster ("Wanted: dead or alive") invites lynch law: righteous anger requires that Osama Bin Laden be treated according to international law.

That law, it must at once be acknowledged, justifies breaching "state sovereignty" - the refuge of scoundrels like Pinochet and Milosevic - when force is necessary in self-defence or to punish a crime against humanity. The International Court of Justice declared in 1949, in a ruling sought by Britain when its ships in the Corfu Channel were attacked from Albania, that every state has a duty to prevent its territory being used for unlawful attacks on other states. In 1980, after the hostage taking at the US embassy, the same court ruled that Iran was responsible for a failure in "vigilance" and a toleration of terrorism. It follows that the right of self-defence (preserved in Article 51 of the UN Charter) permits the US to resort to force for the limited purpose of doing Afghanistan's duty, once that state refuses to prosecute or extradite Bun Laden, and to close down his camps.

But America's legal right is severely qualified: the military exercise must have justice as its sole objective - by arresting terrorist suspects, gathering evidence and destroying weapons and training camps. On no account must it target civilians. The precedent which places the severest legal limit on the US attack was established by its own protest against Britain's sinking in 1837 of a US steamboat (the Caroline) which was aiding rebels in Canada: both governments agreed that self defence must be based on a necessity which is "instant, overwhelming, leaving no choice of means, and no moment for deliberation".

A more modern and more permissive legal justification for an armed response is provided by the emerging human rights rule that requires international action to prevent and to punish "crimes against humanity". The black Tuesday atrocities, like the bombings of the US embassies in Kenya and Tanzania in 1998, precisely fit the definition, which covers not only genocide and torture but "multiple acts of murder committed as part of a systematic attack against a civilian population". It was to punish such crimes in Kosovo that NATO breached Serbian sovereignty, and the same principles should apply (this time, with Security Council backing) to any intervention in Afghanistan. But this means the US must acknowledge that organised terrorist groups (including those they have supported, like the Contras) as well as states, are capable of committing such crimes.

Whatever basis America and its allies advance for their "war", the 64 dollar question is whether they are entitled not only to hunt for Bin Laden but to bring down the Taliban Government. This wider purpose, already signaled by Tony Blair and Peter Hain, only becomes lawful if Taliban forces attack a Security Council approved mission to arrest Bin Laden. So long as that US led force confines itself to doing what the local government ought to do, any attack upon it directed by that Government entitles the allies to strike back - to declare a "just war" and to overthrow the Taliban.

But this all depends upon whether, at this initial stage, the US and its allies are preparing to breach Afghanistan's sovereignty with the legitimate objective of bringing Osama Bin Laden to trial in court that can guarantee him justice. It is this dimension which must now be honestly addressed, because the plain fact is that a jury trial in New York, with a death sentence upon conviction, will not provide a forum where justice can be seen to be done.

A New York jury will be too emotionally involved in the events to consider the evidence dispassionately. (For this reason, those accused of IRA crimes in Britain were never tried in the cities they were alleged to have bombed.) It may be doubted whether any American jury could put aside the prejudice against the "prime suspect" created by their media and by their leader's demands for his "head on a plate". The only "guilty" verdict which can persuade the world of Bin Laden's guilt will be closely and carefully reasoned, delivered by distinguished jurists, some from Muslim countries.

There is such a criminal court in session at The Hague, dealing fairly and effectively with crimes against humanity committed in former Yugoslavia and Rwanda. The Security Council would undoubtedly agree to any US request to extend its remit to try Bin Laden. The Hague Tribunal affords all basic rights to defendants, in trials before three international judges and appeals to a further five. It has developed reasonably fair procedures for evaluating the kind of hearsay evidence which may be necessary to prove terrorist conspiracies, and has protocols which protect the security of electronic intercepts and other fruits of secret intelligence gathering.

The alternative is to construct a special Lockerbie-style tribunal, or even to bring the International Criminal Court hurriedly into existence with a retrospective mandate to deal with terrorist crimes against humanity. The existence of such a court would obviate the problem President Bush now faces from demands to produce the proof of Bin Laden's guilt: this is the function of a prosecutor, who obtains his indictment - the warrant for arrest and trial - after presenting prima facie evidence to a judge. But the creation of the international criminal court, supported by 120 countries including the UK, has hitherto been opposed by the Pentagon and by right wing republicans, fearing that it might one day indict an American soldier.

Thus self-indulgent isolationism may no longer prevail, if their nation comes to realize that punishing its enemies requires international cooperation. After all, we owe the idea of international criminal justice to President Truman, who insisted on the Nuremberg trials against the opposition of Churchill (who wanted the Nazi leaders shot on sight). He did so because "undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would not sit easily on the American conscience or be remembered by our children with pride".

It needs Mr Blair to remind the President of how "the American conscience" once cooled the British desire for revenge and created a court whose judgment stands as a landmark in civilisation's fight against racially motivated terror. Its legacy requires the Taliban Government to extradite Bin Laden - for the crimes of 1998 as much as 2001 - but only permits the use of force if those who deploy it can promise him a fair trial. Without that guarantee, "operation infinite justice" becomes the cry of the Red Queen in Alice in Wonderland: "sentence first - trial (posthumously) later".

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Two Cheers for the Human Rights Act 27th Sept 2001

The Human Rights Act came into force on Monday, 2nd October 2000. There were no fireworks, no exultant crowds bearing aloft a bewigged Lord Chancellor, as befits a new constitutional settlement. Instead, came dire predictions that courts would be buried under a litigation avalanche, and that lawyers (especially Cherie Booth QC) would make pots of money. One year on, the Act has proved a measured but very moderate success: on its first anniversary, it deserves two cheers.

The most detailed study, by the Human Rights Research Unit at Kings College (now based at Doughty Street Chambers) shows that in its first 12 months the higher courts considered the European Convention (which the Act introduced into UK law) in 192 cases, and accepted its relevance in 121 of these: but in only 38 was a Convention-based argument upheld. Twenty six concerned the right to a fair trial, which our courts have always had an inherent power to secure - so these results, now justified by reference to the Human Rights Act, would probably have been the same without it. A further ten decisions were to interpret statutes to conform with Convention guarantees and the remaining two were "declarations of incompatibility" - i.e. a signal from the court to Parliament that it should look again at legislation which the court had to enforce.

These statistics support the impression of many lawyers that the Act is being used to provide a principled basis for decisions which would have been the same in any event, reached through the less satisfactory pre-Convention device of "developing" the common law. There has as yet been no example of a judge announcing, through gritted teeth, that the Act has forced him to make a decision that he would not otherwise have reached, or which he considers contrary to the public interest.

Although most High Court judges have been cautious in their use of new powers under the Act, the House of Lords has delivered several robust judgments with a beneficent impact. Most notably, the Law Lords have enhanced the constitutional protection given to citizens disadvantaged by unthinking or hide-bound bureaucrats. Previously, courts could only interfere with an administrative decision if it was irrational - i.e. only if satisfied that "the decision-maker had taken leave of his senses". Thanks to the Convention, they will now be able to quash decisions which are, quite simply, unreasonable. This is an example of how the Human Rights Act not only gives more help to citizens, but at the same time improves the quality of Whitehall decision-making.

It is too early to assess how the Act is working at street level, on police procedures and the quality of justice available in the magistrates court. There is anecdotal evidence of greater attention to first principles: lay justices who think a defendant is probably but not certainly guilty tend now to do the right thing and acquit, rather than to convict and salve their consciences by imposing a lower sentence than the crime actually warrants. It will take several years, and studies as yet uncommissioned, before the long-awaited "human rights culture" takes root in police canteens and magistrate's retiring rooms.

However, one happy but unheralded result of the Act has been to improve civil liberties in countries of the Commonwealth. Sixteen states still have the Privy Council (comprising UK Law Lords) as their final court of appeal, whilst the others have common law courts which accord "persuasive" respect to British judgments. Through their progressive elucidation of Convention rights, British courts are already influencing and fortifying less secure judges in countries as far flung as Hong Kong and Malaysia, Antigua and Zimbabwe - all of which have constitutions which entrench similar rights. In this respect, the Human Rights Act has already shown its potential for helping the cause of liberty abroad, in places where it is more in peril than at home.

Here, as treasury cost-cutters confirm, lawyers have not enjoyed a bean-feast as a result of the Act. This is because Convention arguments are merely added to cases which are brought to court on other, more traditional, grounds. This is, in fact, a serious defect in the Act, which defines too narrowly the kind of "victim" who may make a human rights claim. The only free-standing challenge brought under the Act so far has been to the anachronistic Treason Felony law of 1848, which imposes life imprisonment on any who dare advocate republicanism: the editor of The Guardian was told he was not a "victim" with standing to sue. The case is on appeal, but for the present it deters use of the Act against such obviously incompatible laws as those relating to blasphemy and sedition, and the sexist and sectarian Act of Settlement.

Has the Human Rights Act had any undesirable side-effects?  It's section 11 was meant to prevent the Convention's Euro-generalities from cutting down traditional English rights, but some concerns remain. The "open justice" principle of the common law ("Every court in the land is open to every subject of the king") is more robust than the wishy-washy europrose in Article 6 of the Convention, but the sudden upsurge in courts sitting in secret and giving anonymity to parties and witnesses may well be attributable to over-much attention being paid to European rather than English principles. The alphabet soup of current High Court lists (A v B; X v Y) deserves an explanation.

But one current line of attack on the Human Rights Act, from Conservative politicians and commentators, is utterly misguided. They claim it will prevent Parliament from legislating against terrorism. This is false, because the Act does not prevent Parliament from doing anything. The principle of "parliamentary sovereignty" it expressly endorses, so long as the legislation makes clear its purpose of overriding the Human Rights Act. That stated purpose will bind all English courts, and the Government can even avoid the consequences of an adverse decision from Strasbourg by making a formal "derogation" from the Convention. (This it has already done in the case of suspected terrorists, who may be interrogated by police for four days without the law's intervention.)

One year on, it is too early to assess the impact of the Human Rights Act. British judges have certainly done a better job than their Canadian counterparts, whose reaction to a "Charter of Rights" was to produce interminable decisions couched in the most turgid prose. Our efforts, however, cannot match the incisive and literary qualities of judgments from South Africa's constitutional court - no doubt because its members learnt about human rights at the sharp end. When the subject falls out of fashion - as it may if the "war on terrorism" takes hold - we will learn what the Human Rights Act is really worth.

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Lynch Mob Justice or a Proper Trial, 5th Oct 2001

The Government's case against Osama bin Laden for the September 11th atrocity does not prove, in Iain Duncan Smith's inapt words, that he is "guilty as charged". It demonstrates that there is sufficient evidence to put him on trial, a fact which requires the creation of a court capable of trying him fairly. Otherwise the justice that the US and its allies rightly seek will be that of the lynch mob, not of international law.

The Prime Minister's initiative in tabling this indictment of bin Laden and the Taliban is welcome. It is not "evidence", so much as a convincing argument based on similar facts, matters of record, intelligence analysis and reasonable suspicions. It shows in blood curdling detail that bin Laden has consistently incited the murder of Americans and is assuredly implicated in the 1998 US embassy bombings (he even confessed in "Time" magazine, although a court would want to inspect the reporter's notebook).

There is much that points to his organization as responsible for September 11th and to dismiss it all as "circumstantial" misses the point: in proving conspiracy, circumstantial evidence is often more credible than fallible human testimony. What the Government has presented to Parliament is a prima facie or presumptive case, sufficient for extradition and for putting the man on trial. Whether, when fleshed out and forensically tested, it would create a certainty of guilt must be a matter for a court. But which court?

At this point an embarrassed silence descends. The "justice" that Mr Blair correctly demands cannot sensibly or dispassionately be delivered by a New York jury, emotional victims of the crime. Any jury verdict of "guilty" without reasons will not convince, and the spectacle which would follow in America - a death sentence by lethal injection or in the electric chair - is too grotesque to contemplate. If bin Laden is to be fairly tried, it must be by an international court, with distinguished jurists (including Muslim judges) giving a closely and logically reasoned decision.

In The Hague, just such a court exists for perpetrators of "crimes against humanity" in former Yugoslavia. It affords all basic rights to defendants and has developed reasonably fair procedures for evaluating the kinds of evidence upon which the government's charge heavily relies, namely electronic intercepts and other fruits of secret intelligence gathering. The UN Security Council in its present mood would readily accept any US request to set up a similar tribunal for those accused of masterminding what was in truth a crime against humanity.

The urgency of putting in place some such "Lockerbie solution" becomes plain from reading between the lines of yesterday's government statement, which seeks to lay the foundation for an attack on Afghanistan. It is most convincing when it outlines the extent to which the Taliban regime has wittingly collaborated with the bin Laden's terrorist training enterprises.

In international law, every state has a duty to prevent its territory being used for unlawful attacks on other states. In June of this year the US formally reminded the Taliban of that duty and warned that it would be held responsible for bin Laden. Its refusal to surrender him now that a prima facie case has been made entitles the US (exercising its right of self defence under Article 51 of the UN Charter) to resort to force, although initially only for the limited purpose of apprehending bin Laden and destroying his camps. Only if the Taliban counter-attacks an operation which is legitimate (in so far as it is directed to fulfilling an international obligation that the Taliban itself has refused to recognise) is the US justified in waging a wider war on Afghanistan.

What yesterday's statement demonstrates beyond any doubt is not that bin Laden ordered Black Tuesday but that ever since 1996 the state of Afghanistan has knowingly and truculently connived at his unlawful plotting against other states, a position its government still maintains by refusing to take any action against him. This provides a mandate for the US and its allies to breach Afghanistan's sovereignty. But the right of self-defence is not a right to retaliate or to seek reprisals. It is limited by rules that the force used must in no way target civilians and must be proportionate to the legitimate object of the mission.

But what, exactly, is this objective - apart from disabling bin Laden's terrorist infrastructure? The Prime Minister describes it as "justice" but has not crystallised this war aim as he did over Kosovo when he called for Milosevic to be brought before an international criminal court. This is understandable, since the US (and particularly the Pentagon) has hitherto opposed the creation of any international criminal tribunal which could conceivably indict an American citizen. But without such an objective, capable of achievement through a fair trial, the danger is that the war aim will remain that of getting bin Laden's "head on a plate". However strong the Government believes its evidence to be, this does not amount to justice.

Yesterday Osama bin Laden was tried in abstentia by parliament and convicted. The real task ahead is to provide a forum for trying him fairly should he become, or be made, available to answer the charges in person.

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© 2004 Geoffrey Robertson QC
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