Crimes Against Humanity: The Struggle for Global Justice

Crimes Against Humanity

Crimes Against Humanity

The Struggle for Global Justice

FOURTH EDITION

Geoffrey Robertson QC

NEW YORK

LONDON

For Julius and Georgina

© 1999, 2000, 2002, 2006, and 2012 by Geoffrey Roberston

All rights reserved.

No part of this book may be reproduced, in any form,

without written permission from the publisher.

Requests for permission to reproduce selections

from this book should be mailed to:

Permissions Department, The New Press,

120 Wall Street, 31st floor, New York, NY 10005.

Originally published in Great Britain by Allen Lane, 1999

Subsequent editions published in Great Britain

by the Penguin Group in 2000, 2002, 2006, and 2012

This edition published in the United States

by The New Press, New York, 2013

Distributed by Two Rivers Distribution

ISBN 978-1-59558-863-0 (e-book)

CIP data available

The New Press publishes books that promote and enrich public discussion and understanding of the issues vital to our democracy and to a more equitable world. These books are made possible by the enthusiasm of our readers; the support of a committed group of donors, large and small; the collaboration of our many partners in the independent media and the not-for-profit sector; booksellers, who often hand-sell New Press books; librarians; and above all by our authors.

www.thenewpress.com

24681097531

Contents

Preface to the Fourth Edition

Introduction

1The Human Rights Story

In the Beginning: Natural Rights

The Trial of Charles I

Revolutionary Rights

The Nineteenth Century: Bentham, Marx and the Humanitarian Impulse

Armenian Massacres, The League of Nations and Stalin’s Show Trials

H. G. Wells: What Are We Fighting For?

Nations United

The Universal Declaration of Human Rights

2The Post-war World

1946–76: Thirty Inglorious Years

The Human Rights Commission and Council

The Human Rights Committee System

Some Enforcement at Last: The European Convention, and Other Regions

Realpolitik Rules OK

The Srebrenica Question

3The Rights of Humankind

Making Human Rights Rule: International Law (International Conventions and Treaties, Custom and State Practice, Principles of Law Recognized by Civilized Nations, Judicial Decisions and Textbooks)

International Crimes and the Rule Against Retrospectivity

The Statute of Liberty

Safety of the Person

Individual Freedoms

The Right to Fairness

Judicial Independence

Peaceful Enjoyment of Property

4Twenty-first Century Blues

Freedom from Execution

Death Penalty Safeguards (Mandatory Death Sentences, Unfair Trials, Rights of Appeal, Mercy Petitions, Stays of Execution, Exempted Persons, Delayed Executions, Modes of Execution)

Minority, Cultural and Indigenous Rights (The Right to Exist, The Right to Be Different, The Right to Return of Cultural Property, Indigenous Minorities)

Self-determination

The Question of Palestine

Economic and Social Rights

Labour Rights as Human Rights

The Duties of Multinational Corporations

A Right to Democracy?

5War Law

In Search of the Just War (Dr Lieber’s Code, The Hague Conventions, The World Wars)

The Geneva Conventions (The 1949 Conventions, The 1977 Protocols)

Good Conventions (Chemical and Biological Weapons, Nuclear Weaponry, Conventional Weapons, Landmines, Cluster Bombs, Pillage, The Crime of Aggression)

The Dogs of War

War Reporting (Compulsion to Testify, Source Protection)

Child Soldiers

6An End to Impunity?

International Criminals: Pirates, Slavers and Kaisers

The Nazi Leaders: Summary Execution?

The Trial

Judgment Day

Nuremberg and Tokyo: Victor’s Justice?

Towards Universal Jurisdiction (The Genocide Convention, The Torture Convention, Piracy and Slavery, Apartheid)

The Nuremberg Legacy

7Slouching Towards Nemesis

Out of This Blackness

The Duty to Prosecute

The Limits of Amnesty

Amnesties in International Law

Truth Commissions and Transitional Justice

The Case for Retribution

8The Case of General Pinochet

An Arrest in Harley Street

The State in International Law

Sovereign Immunity

Bring On the Diplomats

The Law Takes Its Course

The Pinochet Precedent and the ICJ

9The Balkan Trials

Establishing the ICTY

The Legal Basis of the ICTY and ICTR

How the ICTY Operates

The Tadić Case

Individual Responsibility

The Rwanda Tribunal (ICTR)

The Milošević Trial

Karadžić, Mladić and the ICTY Legacy

10The International Criminal Court

Rome 1998: The Politics

Rome 1998: The Statute

International Crimes (Genocide, Crimes Against Humanity, War Crimes)

Criminal Law Principles

The Court (Jurisdiction, Complementarity, Composition)

The Trial (Prosecution Powers, The Hearing, Punishments, Appeals)

Rome 1998: The Aftermath

The ICC, Ten Years On

11Justice in Demand

Lessons from Sierra Leone

The Killing Fields of Cambodia

Long Ago and Far Away: Bangladesh

The Case of East Timor

Trials of the Arab Spring

The Lebanon Tribunal

Syria – Lethal Force and the Right to Protest

12Terrorism: 9/11 and Beyond

Enemies of Humankind?

Making War Means Making Law

Self-defence: The Ignoble Art?

The Road to Guantanamo Bay (Camp Justice: The Trial of Khalid Sheikh Mohammed)

Targeted Killings (Send in the Drones, Executing bin Laden)

Fair Trials for International Terrorists? (Special Military Commissions, Jury Trial, The Lockerbie Alternative, A UN Tribunal)

The Crime of Terrorism

13Toppling Tyrants: The Case of Saddam Hussein

Give War a Chance

The Bush Doctrine and Beyond

Regime Change

The Occupation of Iraq

Abu Ghraib: Sadists on the Night Shift?

The Trial of Saddam Hussein

14The Guernica Paradox: Bombing for Humanity

The Right of Humanitarian Intervention

We Bombed in Kosovo

Just War

The Responsibility to Protect (The R2P Principle, Libya and Syria – 2 R2P or not?, Sri Lanka – Getting Away with Mass Murder)

The Gaddafi Precedent (The Crimes of the Colonel, Resolution 1970, Resolution 1973, Tripoli or The Hague?)

The Aftermath – Laurent Gbagbo

Epilogue

Notes

Appendices

A: Human Rights in History

B: Universal Declaration of Human Rights

C: Ratifications of Human Rights Conventions

D: Excerpts from the Rome Statute of the International

Criminal Court

E: Excerpts from the Charter of the United Nations

Index

Preface to the Fourth Edition

‘I have put my death-head formations in place with the command relentlessly and without compassion to send into death many women and children of Polish origin and language. Only thus we can gain the living space that we need. Who after all is today speaking about the destruction of the Armemans?’

Adolf Hitler to chief commanders and commanding generals,

22 August 1939¹

I happen to have been born on the day of the Nuremberg judgment – 30 September 1946 – so the length of my life provides a precise temporal measure of the extent to which the international community has delivered on the momentous promise of that day, namely that crimes against humanity would henceforth be deterred by punishment of their perpetrators. It was the judgment imposed upon the authors of the Holocaust which created international criminal law, a freestanding and universal jurisdiction to prosecute those who direct or assist a crime so heinous that it is ‘against humanity’ because the very fact that a fellow human being could conceive and commit it demeans every member of the human race, wherever they live and whatever their culture or creed. It is a crime confined to genocide and mass murder and systematic torture, or to atrocious acts of warfare and terror, and it imputes a special responsibility to commanders, organizers and abettors of these crimes – be they heads of state or political or military leaders, bureaucrats or theocrats, ideologues or industrialists. Since the perpetrators will generally be powerful enough to be above or beyond the law in their own state, the Nuremberg legacy depends for its fulfilment on the establishment of international institutions of justice with power to end impunity.

Sixty-five years on from that day of judgment, the nations of the world have made a start in devising institutions and procedures which work to protect the most basic of human rights: freedom from state-sponsored murder, torture and terror. This progress has been made mostly since publication of the first edition of Crimes Against Humanity in 1999. The book was fuelled by anger at the seemingly endless barbarities committed with impunity by governments throughout the world, some of which I had observed – officially for Amnesty International and Human Rights Watch, professionally as a barrister defending dissidents or just casually, as a television viewer. I sought to build, from the straws blowing in the fin de siècle wind (the arrest of Pinochet, the UN courts set up to deal with war crimes in Yugoslavia and Rwanda, the Lockerbie agreement and the Rome Statute for an international criminal court), an argument for a kind of millennial shift, from appeasement to justice, as the dominant factor in world affairs. The evolving force of international human rights law was carrying some compulsion in municipal courts and in an increasing number of international tribunals. The pioneering discovery (law being a science in its content, an art only in its practice) was how the crime against humanity, first defined in the Nuremberg Statute, might become the key to unlocking the closed door of state sovereignty, and to holding political and military leaders responsible for the evils they chose to visit upon humankind.

The preface to the first edition was completed on 24 March 1999, another red-letter day; it began with the British law lords ruling that the Torture Convention had destroyed General Pinochet’s sovereign immunity, and ended with NATO bombing the sovereign state of Serbia over its ‘ethnic cleansing’ in Kosovo. The promise of Nuremberg, for the first time since 1946, seemed capable of realization. When, a few months later, a UN force landed on the shores of East Timor, to protect its people from massacre by Indonesian militias and to secure their right to self-determination, the era of human rights enforcement seemed to have dawned. It would, in effect, be the ‘third age’ of human rights: the first had been articulated in the declarations of the American and French Revolutions; the second was ushered in by the Nuremberg judgment and the triptych of treaties it directly inspired – the 1948 Universal Declaration and the Geneva and Genocide Conventions. Now, more than a half century on, human rights law was teething at last – and in this third age, its teeth would be for biting, not gnashing.

A critical response to the publication of Crimes Against Humanity, in the summer of 1999, nervously concentrated on practicalities rather than principles. Might Pinochet’s arrest not destabilize democracy in Chile? Would Milosevic ever be surrendered to face his indictment in The Hague? These fears seem risible now. Chile’s democracy has gone from strength to strength: in 2006 the nation elected a Pinochet torture victim as president and its courts lifted the old tyrant’s immunity for crimes of torture and murder. The indictment of Milošević hastened his fall from power and international pressure forced Serbia to disgorge him to The Hague; the issue before his death was not whether he should be tried, but how he should be tried more effectively. The main ideological objection to the book’s argument came in Europe from relics of the socialist left who cling still to nation-state sovereignty (Milošević was its embodiment) as a protection from American interference. From their perspective, ‘enforcing human rights’ was a euphemism for forcing American freedoms on peoples who should not be allowed to enjoy them.² Ironically, the vehemence of this critique was contradicted in America itself by blasts from the Republican right. Future UN ambassador John Bolton, then an obscure think-tanker, wrote that the book’s advocacy of a global justice movement was a serious threat to US sovereignty and to its ability to do in the world whatever served its national interest.³ From his perspective, international law was a set of rules that could be imposed upon other countries, but which must never be enforced against Americans.

The first edition found its way into the footnotes of many books and articles on human rights enforcement and was set on many law and international politics courses. It was tempting to leave it unamended, as a fin de sìecle case for global justice. But international criminal justice was a work in progress, its principles developing case by case, and war by war, so I decided that this book should accompany its journey. I wrote additional material for the second (2002), third (2006) and now for the fourth (2012) editions, increasing the bulk (and perhaps the price) but also the cogency of the case for a global justice that today is rarely out of the headlines.

It must never be forgotten that international criminal law is a very recent development, dating in reality from the revival of the Nuremberg legacy by the arrest of General Pinochet in 1998. Like other branches of law it develops by the leaps and bounds of precedent, key events, and cases that are the result of happenstance as war criminals or tyrants or heads of state are arrested and sent to The Hague. Pinochet here, Charles Taylor there, then Milošević, Karadžić, Gaddafi (posthumously) and Laurent Gbagbo. Like any legal textbook, this work must be kept up to date. But unlike most other legal textbooks, its subject impacts upon international affairs by asserting the centrality of ‘justice’ to dealing with states that deny it to their peoples. For that reason I shall be reconsidering and recasting the material in this book every few years, doomed like Sisyphus to an uphill struggle, in my case to the improbability of ever giving a complete account of a subject under exponential expansion. Nonetheless, I hope that this edition will give a fairly clear picture of what the struggle for global justice has achieved by mid-2012.

The second edition was published in 2002, and incorporated into its thesis the fallout from the dastardly terrorist attacks on New York and Washington on 11 September 2001. This atrocity, which followed the al-Qaida bombings of USS Cole and American embassies in Kenya and Tanzania, precisely fits the definition of a ‘crime against humanity’, which covers not only genocide and torture but ‘multiple acts of murder committed as part of a systematic attack against a civilian population’. Osama bin Laden was not some peripatetic gang leader but an honoured guest of Afghanistan’s Taliban government during his genocidal jihad against Americans (and anyone else who happened to get in the way). I argued that the consequent war against the Taliban government by the US and its allies could not be justified as an exercise in self-defence under Article 51 of the UN Charter: that certainly permitted an incursion on Afghan territory and sovereignty to flush al-Qaida out of its caves and to capture its adherents, but did not extend so far as to allow the overthrow of the Taliban. That action – which in reality still continues today – could be legitimate only if characterized as an operation to prevent and punish the commission of further crimes against humanity – a ‘just’ war if conducted by reference to the principles of human rights intervention for which NATO’s action in Kosovo had come to stand (and which have now been generalized, not entirely satisfactorily, as the UN’s ‘responsibility to protect’). The ultimate principle, I suppose, is that in the twenty-first century, nations which go to war in the name of human rights must not only make good their case on the battle-field, but subsequently in a court of law. Losers must have access to justice, as well as victors.

Humanitarian intervention was not the principle invoked by the US or the UK for invading Iraq in 2003, an exercise which should not be allowed to affect the principles of humanitarian intervention other than to illustrate the risks of ignoring them. Saddam Hussein was a tyrant who mass murdered some 300,000 of his people: his regime should have been ousted when he began to use poison gas against the Kurds back in 1988. Instead, the world’s advanced nations – most notably, the US and UK – vied to do business with him until he invaded Kuwait, when the coalition that counter-attacked stopped short of marching on Baghdad. Its victory in 1991 was pyrrhic, because it failed to protect Shias from Saddam’s venomous reprisals and defended the Kurds only by makeshift ‘no fly’ zones. The US claim in 2003 of entitlement to ‘pre-emptive self-defence’ was no excuse for regime change in Iraq, since there was no credible evidence that Saddam was harbouring terrorists or was bent upon further unlawful foreign adventures. There was, certainly, reason to suspect him of harbouring weapons of mass destruction: he had attempted to develop them in the early 1990s and had behaved as if he did possess them, by obstructing UN inspectors, and there were seemingly credible reports from defectors. Most members of the Security Council wanted these to be verified, but the belligerents could not wait: the US launched ‘Operation Shock and Awe’ before Hans Blix and his team could complete their work. It was a war commenced without UN or NATO approval, justified neither as an humanitarian intervention nor as a measure of self-defence. It was the latter justification, not the former, that the US invoked in support of its act of aggression.

The United Kingdom, its main coalition partner, assumed that Saddam was hiding WMD and relied upon an earlier Gulf War resolution that might, on a pettifogging reading, be ‘revived’ to justify enforcement action. All belligerents expressly rejected any human rights rationale: indeed, shortly before the invasion, they offered Saddam and his sons amnesty if they would leave the country. It must be said, however, that the initial support for overthrowing Saddam Hussein, certainly among Western journalists and politicians, was based on a belief that it was ‘just’ to use force to topple a tyrant. Belatedly, as Saddam’s WMD proved a chimera and Iraq became engulfed in civil war, Western leaders have retrospectively justified the invasion by reference to Saddam’s atrocious human rights record and the moral rightness of putting him on trial for it, an argument which puts the humanitarian cart before the warhorse, and has done much to discredit so-called ‘liberal interventionism’. George W. Bush was no liberal, and his decision to invade Iraq was not influenced by humanitarian considerations. The subsequent trials of the Iraqi leaders were neither held in an international court nor make any contribution to international law: Saddam was convicted and executed for a local crime, after improper political interference with the independence of his judges. I participated in the training of these brave men, but cannot regard the proceedings, which ended in the squalor of the scaffold, as any precedent for international justice. Thanks to American insistence on exposing the Iraqi leaders to the death penalty, the trial of Saddam Hussein turned into an exercise in wild justice – that is, revenge.

The US, as leader of an increasingly free world, inevitably came in for further scrutiny in the third edition in respect of its denial of due process to Guantanamo Bay detainees, its responsibility for torture at Abu Ghraib and its tolerance of ‘renditions’ that are extraordinary because they are secret and involve the sending of suspects for brutal interrogation in foreign prisons. I noted the emergence of the ‘Bush lawyer’ – originally a colloquial Australian phrase for a hick counsellor ignorant of the rules, but here applied to lawyers in US government service who have misrepresented the law with opportunistic advice that the Geneva Conventions are ‘obsolete’, that due process is unavailable on offshore islands and that the threshold for torture should be defined as pain comparable to that suffered by the loss of a bodily organ.

It took years before the US Supreme Court could strike down the dishonourable advice of the Bush lawyers, premised on the unconstitutional notion that the President could do no wrong – indeed, in time of war (his self-proclaimed ‘war on terror’), could do anything. In this fraught time, the Republican administration challenged the very idea of universal enforceable human rights – to the extent that Bush signed the Jesse Helms-inspired ‘bomb The Hague’ bill (the American Service-Members’ Protection Act) which permitted the President to take military action to free any American ‘captured’ by the International Criminal Court. Nonetheless, international justice continued to have momentum: in this period I served as President of the UN’s War Crimes Court in Sierra Leone, which indicted Charles Taylor, fashioned an international law against recruitment of child soldiers, and struck down amnesties for crimes against humanity. Similar progress was being made at the ad hoc tribunals dealing with war crimes in the Balkans (ICTY) and in Rwanda (ICTR). The third edition of Crimes Against Humanity took in the aborted trial of Milošević – a striking example of the power of international justice to humble demagogues, but equally a measure of the inadequacy of its procedures to cope with a truculent defendant who died mid-trial after three years of prosecution evidence.

This fourth edition comes as the ICTR is winding up efforts which have put behind bars a number of perpetrators of the 1993 genocide in Rwanda, and after the ICTY has captured its two most important fugitives, Karadžić and Mladić, now being tried on charges of genocide and crimes against humanity for Srebrenica and other massacres. The ICTY may not have worked well but at least it has worked, and its conviction of Croatian General Gotovina has reassured sensible Serbs that it has not worked one-sidedly. The demand for justice against tyrants became a catch-cry of the crowds during the so-called ‘Arab Spring’: in Iran (2009) Syria and Bahrain, and (more successfully) in Tunisia, Egypt and Libya. It was a cause for which many were prepared to die. The most important precedent was set in 2011 by the Security Council, which by Resolution 1970 referred the case of Libya to the ICC prosecutor (who subsequently indicted Colonel Gaddafi, his son Saif and his intelligence chief Al-Senussi). This unanimous resolution gave universal justice a great-power imprimatur it had hitherto lacked, as the US, Russia and China had always insisted on ad hoc courts to deal with country-specific problems. Now, by Resolution 1970, they all endorsed the International Criminal Court as the proper instrument for investigation and prosecution of the leaders of a country who were preparing to kill their own people. Back in 2005 the Security Council had referred Darfur to the ICC, but that decision was subject to a number of abstentions (including, hypocritically, that of the US, which had brought the case forward). Now, partly due to the influence at the UN of the ‘Responsibility to Protect’ doctrine which justified international intervention in states that could not protect their own people, the principle of universal (rather than ad hoc) justice was invoked, bolstered a few weeks later by Resolution 1973, which empowered NATO to use ‘all necessary means’ to protect Libyan civilians – the means that became necessary were aggressive armed action calculated to overthrow the Gaddafi regime.

In consequence, in 2012, the odds that nemesis will catch up with perpetrators of crimes against humanity are significantly better than they were in 1999. That means that international human rights law can be confidently said to exist in the real world, not just in the reports of non-governmental organizations or the pipe dreams of law professors. True, there is a selectivity in its enforcement at this early stage: the Security Council will not move against governments or governors allied with its ‘big five’ permanent members, while some pariah states and rogue statesmen may escape through its lack of interest or lack of funds. There is a ‘catch as catch can’ quality about international criminal justice at this point (illustrated by the failure to catch Bashir or to indict Assad) but criticism that enforcement is selective should count not as a principled objection but rather as a spur to get international justice systems up and running, creating precedents that can be universally applied. The Arab Spring, for example, produced ICC indictments on Gaddafi and his son, while Mubarak was tried domestically and Ben Ali escaped to refuge in Saudi Arabia. As for the US, even when the Bush administration adopted the ‘exceptionalist’ position that international law is a set of rules for the rest of the world, those rules were entrenching themselves in American legal practice. The opposition of many in the US military to undermining the Geneva Conventions was vindicated by the Supreme Court and President Obama began his term by renouncing torture and promising (albeit unsuccessfully) to close Guantanamo. The most urgent problem for international justice is no longer US exceptionalism but the failure of international courts to devise and to operate expeditious and effective (and cost-effective) procedures for delivering it.

Most cases in international courts are still excruciatingly slow and intolerably expensive. These courts have an unfortunate structural bias towards the prosecution, but have not managed to slow the flow of gravy-train motions by some defence lawyers. Judicial appointment through a UN system of state nomination does not mean selection on merit or selection of the fittest. NGOs, philosophically supportive of the international justice movement, sometimes pull punches that should be landed on international courts for costs blowouts and procedural obfuscations. The adversarial system, which works in many Anglo-American countries because defendants are prepared to co-operate with a system that offers a possibility of acquittal, can collapse in chaos when that co-operation is withdrawn. The high-profile trial of Slobodan Milošević provides a case in point: the court bent over backwards to do him justice but he mocked it by outrageous cross-examination and constant demands for adjournments. The judges can also be as slow as the lawyers: in Charles Taylor’s case, for example, after a trial lasting three and a half years, there was an unexplained delay of over thirteen months in delivering judgment.

In jurisdictional terms, some of the difficulty comes from the attempted fusion of two very different doctrines: international law (which must be extrapolated from treaties, juristic writings and state practices) with criminal law, which should be a clear set of legal rules simple enough for criminals to comprehend. Although I owe my own passion for law to teachers like Julius Stone and Ronald Dworkin, I learned it in practice with John Mortimer QC down at the Old Bailey, where a rule was one of law not because it could be found in a text book or deduced from ‘right reason’, but because there was a prospect that someone would be sent to prison for its breach. The task of producing a workable set of rules for international criminal tribunals has been to pare away the academic excrescences of international law, with its extinct Latin phrases and its obscure theories culled from indigestible treaties and tomes and travaux préparatoires, and to produce a straightforward set of prohibitions and procedures, operated by confident judges skilled at applying them in adversarial proceedings. It has also been a mistake to attempt to fuse the civil law inquisitorial system with the adversarial tradition of Anglo-American trial. Many European jurists thought that this would produce the best of both legal worlds: increasingly, it can be seen to have produced the worst.

But this is not a textbook on legal procedures. It aims to tell the human rights story, with some of the spilt blood and guts, passion and philosophy that have enlivened its history and will influence its future. It is difficult entirely to avoid Latin phrases or the ‘alphabet soup’ acronyms which stand for the profusion and confusion of UN conventions and committees. In this book, however, I have tried to use as few acronyms as possible and have kept the Latin de minimis. It is, in one sense, an exciting and timely story, because it has very recently become possible – with the help of the ICC, UN war crimes courts, the European Court of Human Rights, the Privy Council and leading national courts entrusted with the interpretation of bills of rights – to synthesize a body of basic guarantees potentially enforceable throughout the world, properly described as ‘international human rights law’ because states publicly recognize that its rules should never be breached, however frequently or secretly they are.

The first step, it seems to me, towards having human rights respected is to enable these rules to be understood by ‘ordinary people’ (the condescending phrase lawyers use to describe people who are not lawyers). After all, the modern progress of human rights – from an aspiration born of the concentration camp and the gulag to a set of powerful international law propositions to which enforcement mechanisms may be attached – has been accomplished not by lawyers or diplomats but by a movement which now has millions of ‘ordinary’ members throughout the world: twelve million, for a start, who signed an Amnesty International petition pledging support for the Universal Declaration on its fiftieth anniversary. Some have been inspired by the courageous examples of dissidents who have suffered in freedom’s cause, but many more by revulsion against the atrocities brought into their homes through a billion television sets and twice as many radios, now being superseded by electronic social connectivity through blogs, Twitter, Facebook and an Internet to which two billion people have access. This has created a vast audience which is beginning to think like global citizens and, as the Arab Spring showed, is certainly beginning to believe that democracy is a necessary, if not sufficient, condition for progress. In Václav Havel’s phrase, ‘the power of the powerless’ is beginning to be felt. It is their reaction to human rights violations which constitutes, in Theodore Roosevelt’s phrase, ‘the indignant pity of the civilized world’ and, when transmitted to different democratic governments, impels international and UN response. Horizons have widened: the old newspaper joke ‘Small Earthquake in Chile: Not Many Dead’ rings hollow when television pictures of corpses in Racak (Kosovo) can put that obscure village on the map of everyone’s mind and galvanize the West to war. That crimes against humanity occur in ‘a far away country between people of whom we know nothing’ – Neville Chamberlain’s reason for appeasing Hitler’s invasion of Czechoslovakia – is no longer an excuse, as social media coverage of human rights black spots rekindles the potent mix of anger and compassion which produced the Universal Declaration and now produces a democratic demand not merely for something to be done, but for the laws, courts and prosecutors to do it.

Notwithstanding this groundswell for ‘global justice’, and the progress made in the years since the first edition, I have had no hesitation in keeping this book’s subtitle, prefaced with the word ‘struggle’. The mechanisms for delivery are imperfect and the opposition formidable. In some of the feudal societies of the Middle East, and the war-torn areas of sub-Saharan Africa, human rights and especially women’s rights are little better today than they were half a century ago. Optimism is an eye disease which inflicts many who hold court on the subject in university lecture halls or the expensive Geneva hotel suites where diplomats prefer to hold their conferences. The matter is perceived differently from the cells of political prisons and the unmarked cars of death squads. I cannot forget standing on a Belfast street shortly after ‘Bloody Sunday’, as an armoured car passed and it dawned upon me that there was an exact point in its passing at which, in the event of any crossfire, I would be hit by a bullet in the head. It is that point which I have tried to keep in mind while writing this book. It is a point which permits hope (since Belfast has been made safer by a peace process guaranteeing human rights) but which serves to remind how many other ‘mean streets’ there are in this world where you can still be caught in crossfire, and in how many of them you can now be deliberately murdered by fire from drones in the sky or snipers in the pay of war criminals.

Today ‘human rights’ is much in fashion, which makes it the subject of a certain amount of humbug. In a world where virtue is no longer its own reward, there are plenty of human rights prizes, many funded by corporations exposed for exploiting the poor, awarded to well-paid lawyers, well-meaning journalists, well-photographed actresses and politicians who have never had to risk their careers in a cause perceived by national authorities as subversive. Ironies abound: the Simon Wiesenthal Center, celebrated for tracking down Nazi war criminals, today gives its peace prizes to supporters of the government of Israel. Self-promoting pop stars are prepared to promote politicians if they support the right to debt relief, but not the anti-war and anti-corruption measures without which there can be no relief for the poor in countries bankrupted by armed conflict and the extravagance of their rulers. In 2005, the ‘Live 8’ campaign to ‘make poverty history’ made no mention of ending the impunity which in Africa makes poverty inevitable. In 2009 President Obama was awarded the Nobel Peace Prize, just as he was authorizing the CIA’s ‘drone war’ to execute summarily several thousand unconvicted terrorist targets, and anyone who happened, however innocently, to be in their near vicinity. It would be churlish to decry the fashionability of human rights, but premature to think that this means the struggle to have them enforced – the crucial ‘third phase’ of the human rights revolution – has yet been won. Still, it is in a better position than when the first edition appeared in 1999, and a far better position than when I joined Amnesty International as a student in 1970. Then, my initial task was to write a letter to ‘His Excellency Sir Idi Amin Dada, QC, MP, VC and bar’ politely requesting that he hold an inquest into the deaths of three Supreme Court judges whose headless bodies had been found floating downstream after they had delivered a decision ‘about which Your Excellency may well have had reservations’.

I am especially grateful to Amnesty for inviting me, years later, to conduct missions which gave me experience of the sharp end of this subject, and to Ken Roth of Human Rights Watch for preparing introductions to the American editions. I would like to record my lasting gratitude to the late Sir Robin Vincent, my Registrar in the early years of the Sierra Leone Special Court. My thanks for helping this edition to press go particularly to Lionel Nichols, whose research ability, judgement and facility with footnotes have given great comfort. The text has also benefited from discussions with Jen Robinson, Stephen Powles, Kate O’Regan, Caitlin Reiger, Nina Jorgensen, Simona Tutuianu, Toby Collis and Luis Moreno Ocampo. My thanks to Judy Rollinson, who did sterling work on the manuscript, to Stefan McGrath, Tom Penn, Bela Cunha and Richard Duguid at Penguin and Andre Shiffrin, Marc Favreau and Azzura at The New Press. My wife, Kathy Lette, and my children, Julius and Georgina, have frequently had to remind me that the most fundamental human right begins at home.

Geoffrey Robertson QC

Doughty Street Chambers

July 2012

‘And here, over an acre of ground, lay dead and dying people. You could not see which was which except perhaps by a convulsive movement, or the last quiver of a sigh from a living skeleton, too weak to move. The living lay with their heads against the corpses, and around them moved the ghastly procession of emaciated, aimless people, with nothing to do, and no hope of life, unable to move out of your way, unable to look at the terrible sights around them . . . Babies had been born here, tiny wizened things that could not live. A mother, driven mad, screamed at a British sentry to give her milk for her child, and thrust the tiny mite into his arms and ran off, crying terribly. He opened the bundle, and found the baby had been dead for days. This day at Belsen was the most horrible day of my life.’

Richard Dimbleby

BBC broadcast from Belsen, 13 May 1945

Introduction

The notion that individuals, wherever in the world they live, possess a few basic powers which no political order can remove, has had a momentous impact at various points in modern history. The first came in 1642 with the civil war in England, during which Parliament wrested power from an absolute monarch, ended torture and secured some independence for judges, with freedom of speech and (up to a point) toleration of minority religions. By putting their king on trial for tyranny (including the charge that he tortured prisoners of war), an exercise by which they aimed to end what they called (for the first time) the ‘impunity’ of heads of state in Europe, the English Parliamentarians began to grapple with issues that are the subject of this book. It traces the development of the ‘crime against humanity’ – essentially genocide and mass-murder, or torture and persecution on a widespread or systematic scale – as a basis for engaging international justice, at least as a fall-back if local justice is dysfunctional or under the control of the perpetrators. The philosophy behind the global justice principle begins with the parable of the Good Samaritan, and owes something to Shakespeare’s demonstration of the quality of mercy, John Stuart Mill’s defence of the dissident and, of course, Emmanuel Kant’s ‘categorical imperative’ to treat others as you would have yourself treated by others. It took the Holocaust, however, before the free world community could agree to end the impunity of political and military leaders, and bring their depredations within the reach of international law. This book charts the efforts since to deliver on the Nuremberg legacy that crimes against humanity, committed by any human, must be punished.

The second point came in the last quarter of the eighteenth century and was in every way revolutionary: it inspired both the American battle for independence from Britain and the overthrow of the despotic monarchy in France. It endowed these upheavals with a political meaning far beyond the republics which were their immediate object, by establishing the liberty of the individual as a precondition of and restriction on the power of the state. This was not unique to America and France: in other societies limitations had been imposed by tradition or cultural convention, or (most notably in Britain) by compact and common law, but what was truly groundbreaking was the constitutional enumeration of rights which the citizen could enforce against the government by taking it to court. But the notion that ‘rights’ might belong to anyone, anywhere, as a human inheritance was ridiculed by nineteenth-century philosophers and when the majority of Western powers agreed to outlaw slavery, this was attributed to shared moral generosity rather than to any recognition of an inalienable individual right not to be held in bondage or servitude. It dawned on no political leader, even after the carnage of the First World War, that international institutions might tell states how to treat their nationals – the League of Nations and the Permanent Court of International Justice were untroubled by ‘human rights’ until Hitler rendered them irrelevant. At this point, the individual had no rights in international law, which dealt with treaties and agreements between states and was completely inaccessible to their citizens.

The Holocaust was a revelation that was to change this for ever. It crystallized the Allied war aims, and called forth an international tribunal – the court at Nuremberg – to punish individual Nazis for the barbarities they had authorized against German citizens. These charges – called, for the first time, ‘crimes against humanity’ – were distinct from the ‘war crimes’ the Axis partners had inflicted upon Allied soldiers and prisoners-of-war. The logic of the crime against humanity, first defined in Article 6(c) of the Nuremberg Charter, was that future state agents who authorized torture or genocide against their own populations were criminally responsible, in international law, and might be punished by any court capable of catching them. For the first time, it could be said that individuals had a ‘right’ to be treated with a minimum of civility by their own governments, which ‘right’ all other governments had a correlative duty to uphold by trying the torturers who fell into their hands, or else by setting up international courts to punish them. This was the legal legacy of Nuremberg, supplemented by a United Nations system which promised institutional support for a ‘Universal Declaration of Human Rights’ approved by the General Assembly of the United Nations.

The third great moment for human rights – the creation of a process by which it could emerge from the domestic laws and constitutions of a few countries into a universal system affording some minimum protection to everyone, everywhere – had arrived. At the Palais Chaillot in Paris, on 10 December 1948, the president of the General Assembly, Dr H. V. Evatt (the Australian foreign minister), announced the advent of a new international law of human rights, for the first time transcending the laws and customs of independent sovereign states: ‘millions of men, women and children, all over the world, many miles from Paris and New York, will turn for help, guidance and inspiration to this document’.

But this moment was short-lived. The evolutionary process for international human rights law, commenced so confidently, was frozen almost to a standstill by the Cold War. The power blocs did not deny the idea of universal human rights – with shameless hypocrisy, they contentedly signed convention after convention on the subject – so long as no meaningful enforcement action could ever be taken. ‘Human rights’ became a phrase incorporated into insults traded between the Great Powers, as they secretly vied for the support of dictatorships which comprehensively violated them. The four decades between 1948 and the collapse of communism may be characterized – and stigmatized – as the lip-service era for human rights, when diplomats strove to ensure that they could never be meaningfully asserted against a nation state. There were times – the early days of Jimmy Carter’s presidency, for example – when the idea resonated before succumbing to realpolitik, and undoubtedly the ‘help, guidance and inspiration’ of human rights was an important factor in the ultimate failure of some regimes notorious for denying them: the military juntas of Latin America, the apartheid system in South Africa, the USSR and its puppet states of eastern Europe. But all that happened to human rights law over those four decades was a series of academic exercises, honing and refining and putting in place international conventions – most notably the twin Covenants on Civil and Political Rights and on Economic and Social Rights – which were marvels of modern diplomacy: none of the states which signed them intended them to work.

The only progress in this regard was regional, and confined to western Europe, where a human rights court at Strasbourg gradually made guarantees of ‘fundamental freedoms’ more meaningful to citizens across a dozen or so harmonious continental borders. Come the communist collapse, the European Convention and its Strasbourg court were sufficiently impressive for the newly liberated nations of eastern Europe to sign up for membership, and by the time of the UN’s triumphalist talk-fest at Vienna in 1993 there was a much more genuine desire to put human rights at the centre of the ‘New World Order’ proclaimed after the apparent defeat of Saddam Hussein following his invasion of Kuwait. It seemed possible to extrapolate the Strasbourg experiment to a global level, most optimistically by having all 193 member nations ratify the UN Covenant on Civil and Political Rights and accept the jurisdiction of the Human Rights Committee established under its Optional Protocol, so creating a forum for individuals to complain about and obtain redress, as a matter of law, against their governments. In the meantime, a start (barely noticed at first) was made to capitalize on the Nuremberg legacy – international tribunals were established, in The Hague and at Arusha, in Tanzania, to punish the perpetrators of crimes against humanity during the genocidal conflicts in former Yugoslavia and Rwanda.

But evolution of international law is not a linear progress. A backwards step came at Vienna, in 1993, in the form of belated but vehement Third World objections, not so much to the very idea of human rights as to its elucidation in the UN Declaration and the twin Covenants. These were said to embody ‘Western’ perceptions of freedom at odds with those in Asia and Africa, and antipathetic to states governed paternalistically by ‘big men’ or by religious (especially Islamic) law. This ushered in a new ‘universality’ debate, rekindled and rephrased from the nineteenth century when objections to the notion of ‘natural’ or ‘inalienable’ rights had successfully called into question the philosophical truth of the French and American declarations. Human rights were said to be ‘culturally relative’ – by such statesmen as Dr Mahathir (who found an independent judiciary inconvenient to his own aspirations in Malaysia), President Suharto (the incarnation of nepotistic corruption) and Lee Kuan Yew (whose assaults on freedom of speech in Singapore had been designed to maintain his electoral hegemony). The championship of ‘Asian values’ soon weakened with Asian economies, and in 1998 Dr Mahathir’s behaviour over Anwar Ibrahim – gloating after he was beaten up in police custody – made many of his countrymen protest in favour of old-fashioned Western values asserted by the Indonesian protesters who had just swept Suharto from power. Following the elections of human rights activists like Kim Dae Jung in South Korea and Chen Shui-bian in Taiwan, the idea of human rights resurged in Asia.

In the Middle East, fundamentalism and liberalism as well were both kept in check by military or militarized regimes which denied citizens any democracy and forbade free speech. The occasional revolution did not result in democracy – quite the opposite in Libya, where Colonel Gaddafi ruled with unparalleled viciousness, hanging his opponents (‘stray dogs’) from lampposts or sending assassination squads to hunt them down abroad. (At one point he had 1,200 prisoners mass-murdered, because they had protested against prison conditions.) Iran was even worse: the torture by the Shah’s brutal SAVAK was benign by comparison with the torture and execution of dissidents that followed under Ayatollah Khomeini. Thousands of political prisoners were rounded up and hanged without trial in 1988 – perhaps the worst single example of a crime against humanity committed against prisoners since the Japanese death marches at the end of the Second World War. In Iraq in the same year chemical weapons were used by Saddam Hussein to kill thousands of Kurds, and nobody much minded: Western politicians and diplomats flocked to Baghdad’s next arms bazaar.

It was little wonder that when the first books hailed as dispensing millennium wisdom – Francis Fukuyama’s The End of History and the Last Man and Paul Kennedy’s Preparing for the Twenty-First Century – thudded on to reviewers’ desks in 1993, neither made a single reference to human rights as a factor in the futures they envisaged. Readers of these works, hailed as so prescient, could never have imagined that before the century was out a British prime minister and a US president would proclaim a duty to go to war to protect human rights – by putting the leader of a sovereign nation in the dock of an international court.

That this could happen so dramatically was a result of the return to Nuremberg, re-examining and reinstating its great legal legacy – the notion of the crime against humanity. This is a crime with a peculiar horror deriving from the fact that fellow human beings are capable of conceiving and committing it, thereby diminishing us all. Such crimes are not only unforgettable; what Nuremberg established in international law is that they are unforgivable. They cannot be the subject of amnesty or of time limits on prosecution. Punishment cannot be left to history (which depends, after all, on who writes it) or to hellfire (a sanction which would in any event be contrary to the convention against torture). There is a legal duty on all states to investigate and (if the evidence is available) to prosecute persons suspected of this class of offence, narrowly defined as the commission of widespread and systematic murder, torture, enslavement or persecution of innocent civilians pursuant to a political policy. Individuals who commit such crimes must have no hiding-place: there is a universal jurisdiction to punish them. This legal principle draws practical support from the consideration that crimes against humanity will be deterred only if would-be perpetrators – whether political and military leaders or foot soldiers and policemen – are given pause by the prospect that one day, under a different regime or in another country, they may be called to account. And irrespective of claims of state sovereignty, a government which inflicts crimes against humanity on its own people risks armed intervention, from an international community which now accepts an obligation to interfere in the internal affairs of collapsed or criminal states, under the ‘responsibility to protect’ (R2P) principle.

The revival and refinement of the Nuremberg legacy is best appreciated by consideration of the cumulative impact of six unprecedented events, all occurring in the last eighteen months of the twentieth century:

*The statute to establish an international criminal court (ICC) agreed by 120 nations in Rome in July 1998, to come into effect after 60 nations had ratified the Treaty (achieved less than four years later, on 11 April 2002). Only seven nations formally opposed it, although they included the US and China, as well as Libya, Iran and Saudi Arabia.

*The arrest of General Pinochet in London in October 1998, on a warrant from a Spanish magistrate alleging his systematic use of torture. The British House of Lords ruled (twice) that his sovereign immunity from prosecution as an ex-head of state did not protect him against allegations of directing systematic torture. He remained under house arrest in England for eighteen months until declared medically unfit for trial.

*War against Yugoslavia. NATO countries, without explicit Security Council backing, invaded Yugoslavian sovereignty by a bombing campaign designed to stop further ‘ethnic cleansing’ in Kosovo. A ceasefire agreement in June 1999 provided for Kosovo autonomy.

*Freedom for East Timor. In September 1999 a UN-backed coalition led by Australia invaded East Timor to stop massacres by militias in league with the Indonesian army, and to guarantee the island’s independence after its people had voted for that status in a UN-brokered election.

*The Hague Criminal Tribunal. From early 1999 onwards NATO forces began to arrest major war criminals – Serb and Croat generals and their concentration camp commanders – while in Arusha, Tanzania, the former prime minister of Rwanda was convicted of genocide.

*The Lockerbie agreement. After a decade of economic sanctions, Libya finally agreed to surrender the two intelligence agents suspected of blowing up a Pan American jumbo jet over the Scottish town of Lockerbie. They were tried under Scots law, before Scottish judges, at an American airbase in Holland.

After a half century of ineffectual treaties and diplomatic thumb-twiddling, there came this end-of-century stampede to put global justice systems in place: an international criminal court, a ‘prosecute or extradite’ regime for torturers, a precedent for intervening in the internal affairs of sovereign states out of humanitarian necessity. Nations were prepared to kill for human rights in Kosovo, and more significantly were prepared for their troops to be killed for human rights in East Timor. This movement may have owed something to PMT (pre-millennium tension) – a sickness at the atrocities of the twentieth century and a wish to do better in the twenty-first. But it did seem to foreshadow a millennial shift, from appeasement to justice, as a dominant factor in diplomatic relations.

The momentum continued, most spectacularly when Slobodan Milošević appeared in the Hague dock, sold out by his country in disgust and for the price of a reconstruction loan. There were other hopeful developments in the first two years of the new century: the Hague Tribunal recorded its first genocide conviction (forty-six years in prison for a Bosnian Serb general who ordered mass murder at Srebrenica); the humanitarian crisis in Sierra Leone was finally brought under some control by a British force and the UN set up a war crimes court in Sierra Leone to try those who bore greatest responsibility for the atrocities, with the participation of international judges and prosecutors. In East Timor an international tribunal was jailing such militia leaders as it could lay its hands on, although the real culprits – officers of the Indonesian army – were playing a waiting game in Jakarta, where weak politicians and corrupt judges provide a paradigm case in favour of international criminal justice when not much is on offer locally. In other places the Pinochet precedent was beginning to bite, as old dictators realized that their prospects for longevity hinged upon the uncertain expertise of local medics, since they could not travel abroad in safety. Fear of universal jurisdiction caused Indonesian President Suharto to cancel a trip to Germany for heart surgery; Mengistu, the mass-murdering Marxist of Ethiopia, ventured from Zimbabwe to a hospital in Cape Town but scampered back to his bolt hole when his presence was mentioned in the local press. Ariel Sharon was indicted in Belgium by survivors of the Sabra and Shatila massacres, and had to hire lawyers to contest the charges in the interests of being able to undertake trouble-free European travel. A Belgian court used its universal jurisdiction over genocide to jail two Hutu nuns, Sister Gertrude and Sister Maria, who had offered their church as sanctuary for hundreds of Tutsi refugees and then bought the petrol used to incinerate them. In 2001 international judges sitting in Fiji’s appeal court declared illegal the government installed by the military, which actually obeyed the court’s order to hold fresh elections. Of course, there were many examples of failure and foot-dragging, of war crimes unnoticed or unpunished from Chechnya to the Congo, while NATO’s inability to arrest Karadžić and Mladić remained inexplicable, but by the summer of 2001 it could confidently be said that the age of human rights enforcement had dawned.

On 11 September 2001, quite literally out of a clear blue sky, came the kamikaze attack on symbols of American hegemony, leaving almost 3,000 dead, incinerated in the remains of the World Trade Center and part of the Pentagon. This atrocity qualified as a ‘crime against humanity’, since it involved multiple acts of murder committed as part of a systematic attack against a civilian population (the al-Qaida organization had been responsible for previous atrocities carried out as part of the same plan, including the embassy bombings in Kenya and Tanzania which killed several hundred civilians). There was confusion, however, as to whether international law could apply to a terrorist network operating in various countries and possessing neither territory nor government. The immediate presidential declaration of a ‘war on terror’ was at first no more than rhetoric, although it soon decoded into the reality of a war on Afghanistan and the overthrow of the Taliban government. America claimed to be exercising its right to self-defence under Article 51 of the UN Charter, which certainly justified an initial bombing campaign to destroy al-Qaida’s bases and infrastructure. But self-defence only legitimizes a military response when and so long as the necessity for it is ‘instant, overwhelming, leaving no choice of means and no moment for hesitation’. As the bombing continued, the right of self-defence was expanded, and the action lacked credibility as a war to protect America. It was a war to topple the Taliban government, an objective achieved by American air power and ground forces of the Northern Alliance.

If there is any silver lining retrospectively to be found in those grotesque pictures of black clouds over Manhattan, it will be eventual US commitment to a system of global justice which alone offers a principled method of punishing terrorism on this scale. The message that much more international co-operation is needed to ensure that perpetrators of crimes against humanity have no place to hide, and no place to hide their money, was soon communicated by strengthening international extradition arrangements and (through Security Council Resolution 1373) producing a duty on all states to ban the financing of terrorist organizations. What the 9/11 atrocity highlighted – for the world in general and the US in particular – was the spectre of weapons of mass destruction, in the hands of rogue states and rogue statesmen, or obtained by terrorists.

That was the issue that poleaxed the Security Council in 2003 over Iraq, a dictatorship insufficiently punished (in the first Gulf War) for its invasion of Kuwait and not punished at all for its genocidal forays against its population of Kurds and Marsh Arabs. Saddam Hussein’s minority Ba’athist regime had stayed in power by brutal repression, made easier by inconclusive US/UK attempts to bomb it into cooperation with weapons inspectors. By what mixture of arrogance and ignorance Saddam was led to act as if he did have weapons of mass destruction, and by what mix of arrogance and ignorance the Bush administration determined Iraq should be invaded without Security Council approval in order to remove these non-existent weapons, is yet to be fully unravelled: international law was much discussed in the lead-up to a war which it had neither the confidence nor the foresight to prevent. Afterwards, US ‘own goals’ – torture at Abu Ghraib prison, ‘extraordinary rendition’ of prisoners and a refusal of due process for Guantanamo detainees – made the world’s most powerful nation appear the enemy of international justice. That presumption was strengthened by the Pentagon’s relentless and irrational attempt to undermine the ICC – which obscured the fact that the US was the main financial supporter of ‘ad hoc’ tribunals in The Hague, at Arusha (for the Rwandan genocide) and in Sierra Leone. Its rejection of international justice as the venue for Saddam Hussein’s trial was another missed opportunity for progress towards a world willing to punish tyrants who mass murder their own people.

In time – a very little time – this has changed. Towards the end of the second Bush term, the realization that international justice was no bad thing began to dawn on the White House; Colin Powell went so far as to ask the Security Council to refer suspected genocide in Darfur to the ICC (although the US abstained from its vote in favour of the reference). The Obama administration has shown no such hypocrisy, and has collaborated with the ICC almost as if the US were an associate member. It has consistently renounced torture, including waterboarding; it supported Resolutions 1970 and 1973 by which the Security Council empowered the ICC to indict the Gaddafis; it invited NATO to use ‘all necessary measures’ to protect the vulnerable lives of Libyan citizens. But the Obama administration has been unable to summon the political resolve to close Guantanamo or to put its inmates on fair trials rather than military commissions, and the civilian death toll from its use of pilotless drones in Pakistan has become seriously unacceptable – a form of execution of terror suspects without trial or any form of due process. This reached its apotheosis in the killing of Osama bin Laden, by a mission which appears to have been directed to kill rather than capture America’s public enemy number one. The opportunity lost by making him a martyr rather than defendant is discussed in chapter 11. On a more positive note, the US under Obama has shown a greater respect for international law, a greater willingness to abandon some of its ‘sons of bitches’ when the populace turn against them, and a new willingness to respect the ‘responsibility to protect’ principle as a basis for UN intervention, rather than its own exceptionalist view of what serves US interests.

It cannot be said that either Russia or China show much enthusiasm for human rights standards: China consistently opposes incursions upon state sovereignty, and defies human rights standards by passing lengthy jail sentences on dissidents and democrats, imposing firewall censorship on the Internet and inflicting more death sentences than any other country. Russia conducts a brutal war in Chechnya and manipulates the judiciary to jail Putin’s political enemies, although its behaviour at the Security Council tends to be opportunistic, supporting states that it has forged friendships with through trade in arms