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
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.
[ Return to top of page ]
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
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.
[ Return to top of page ]
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
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.
[ Return to top of page ]
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?
[ Return to top of page ]
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
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.
[ Return to top of page ]
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
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
[ Return to top of page ]
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
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
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
(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.
[ Return to top of page ]
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.
[ Return to top of page ]
America is wrong to
shoot first, then ask questions about guilt later 26th Sept
"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
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".
[ Return to top of page ]
Two Cheers for the
Human Rights Act 27th Sept
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.
[ Return to top of page ]
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
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
[ Return to top of page ]