In March 2010, I was elected President of an all volunteer organisation, Australian Lawyers for Human Rights (“ALHR”). This meant that, from time to time, I would have to engage in public dialogue drawing upon human rights principles. Modern human rights principles draw very significantly upon international law. Most of this international law has been built up over the last seventy years. A pivotal moment for the development of human rights principles was the adoption by the General Assembly of the United Nations of the Universal Declaration of Human Rights (“the UDHR”) on 10 December 1948. Numerous human rights treaties have followed. Some have been enacted into domestic law. Regional and international tribunals have been established. A jurisprudence has built up as those treaties (and domestic laws putting them into effect) have been interpreted and enforced.
I was ill-equipped for my new public role. Although I was aware of the existence of treaties such as the International Covenant on Civil and Political Rights (“the ICCPR”) and the International Covenant on Economic and Social Rights (“the ICESCR”) and had glanced upon them at times, I had no real knowledge and no feel for human rights law as a connected set of principles. I had no real sense of the human rights methodology that the jurisprudence had developed to assist in applying generally worded principles to complex issues of domestic application.
Crimes Against Humanity is in its third or effectively its fourth edition. It was first published under the Penguin non-fiction imprint, Allen Lane,3 in 1999. It was first published in Penguin with new material in 2000. Penguin published a second edition in 2002 and the third edition in 2006. Penguin Australia published that third edition in 2008. Hopefully, the author is working on a fourth.
I had been given Crimes Against Humanity as a present some time before I read it. It had sat with other unread books waiting its turn within my unpredictable methods of deciding which book to read next. Within a few weeks of becoming president of ALHR (but without reference to my need for a new education), I decided it was time to read Crimes Against Humanity. I did so with some trepidation. It is a large book (627 closely typed pages) and I knew, therefore, that my limited discretionary reading time would be largely accounted for for some months ahead.
It was a good decision. Among its other characteristics, Crimes Against Humanity is a text book on international human rights law written in accessible language that even a neophyte like myself could master. When I have looked at the text of human rights instruments in the past, whether they were the Declaration on the Rights of Man and of the Citizen; the Declaration of Independence; the Genocide Convention; or the ICCPR and the ICESCR, my ability to take much from the language has been limited. The sentiments are noble but they are what one more or less expects since it is a human rights document that is being consulted. After I have read three or four articles of the particular document, the excitement of reading a document of historic importance has tended to pall.
Crimes Against Humanity infuses life into the words on the pages of human rights treaties. The UDHR is placed into the context of the struggle to negotiate it and pass it at the newly created UN. The drafting is placed into the context of President Roosevelt’s declaration, in 1941, while the war was still raging, of the need for four essential freedoms: freedom of speech and worship and freedom from want and fear. President Roosevelt’s statement itself is placed in the context of HG Wells’ prescient, visionary and influential, 128 page Penguin special: HG Wells on the Rights of Man. The politics of negotiating the declaration in the shadows of a developing Cold War, with influential Australian involvement, is laid out with controversies over particular phrases in the dying hours of the negotiations presented with the high drama that must have occurred at the time.
Crimes Against Humanity, essentially, provides a modern political history of the world. This history has a particular focus and it contains particular themes. The decision of the Allies to conduct the trials of the remaining Nazi leaders at Nuremberg set an ethical foundation for this history. The charter pursuant to which the trials were held and the judgments, themselves, rejected the defence of sovereign immunity for officials and heads of state which had held sway in Europe since the Treaty of Westphalia in 1648. The judgments solidified the notion of crimes against humanity, crimes so horrendous that the fact that a human being could conceive and carry them out diminishes us all as humans. These values about accountability for criminal conduct were accompanied by an equally important notion that those against whom serious crimes are alleged deserve more than victors’ justice, more than a sham of a trial merely delaying a pre-ordained execution. Singular but not perfect efforts were made at Nuremberg to ensure that the process was fair and that the accused had a proper ability to defend themselves.
These values, of accountability for serious crimes by officials, constitute the Nuremberg legacy. The history that unfolds in Crimes Against Humanity is essentially a history of that legacy. Robertson tells that history with passion but without sentimentality. He criticises and praises without fear and favour.4 The flaws of institutions of which he generally approves are pointed out so that improvements may be achieved.5 And, where the legacy is betrayed by those who should be promoting it, Robertson is unsparing in his criticism.
The history subsequent to the adoption of the UDHR in December, 1948 was not encouraging for those who sought accountability for crimes against humanity. Governments and their diplomats paid merely lip service to the values expressed in that document. A Genocide Convention had preceded the UDHR by days and a Refugees Convention, which was necessary to deal with a post war Europe flooded with refugees was adopted in 1951. Long rounds of negotiations ensued which eventually led to the adoption of the ICCPR and the ICESCR in 1966. It was more than a decade before either treaty obtained enough signatories to come into force. However, through all of this time and beyond, world politics was dominated by the Cold War and the diplomats who negotiated the treaties had no belief or desire that they would travel beyond mere pious aspirations.
The phenomenon that Crimes Against Humanity describes is one where, despite themselves, the governments and diplomats who gave birth to the treaties were taken at their word. Led by NGOs like Amnesty International and Human Rights Watch, an international civil society garnered widespread international popular support for the idea that the values in the international human rights treaties (and the Geneva Conventions which promote similar values as part of international humanitarian law6) should be enforceable and enforced. Thus, spurred on by positive events (such as the end of the Cold War) and tragedies such as the genocide in Rwanda and Srebrenica (both events that occurred as the world looked on with knowledge of what was happening or to happen), the beginning of the end to a world of impunity has begun in the last two decades. International Tribunals have been established to deal with the crimes committed in Rwanda and the Former Yugoslavia. A large number of countries have legislated for their domestic courts to deal with international crimes wherever they are committed. In many of the countries in South America, the crimes committed by members of past regimes have been the subject of charges, trials and convictions.
Pivotal in these developments was the Pinochet litigation7 in the United Kingdom. The old dictator had come to the UK for back surgery. He was arrested on an international warrant issued by a Spanish magistrate for crimes committed in Chile against Spanish nationals. The Courts in the UK took the reach of the Spanish statute seriously and, after two House of Lords appeals, it was definitively ordered that the dictator was liable to be extradited to Spain for trial. Ill health and lack of capacity (the validity of which must be questionable in retrospect) intervened and Pinochet returned home but continued to be harassed by a rejuvenated domestic legal system until his death on 10 December 2006, ironically, the anniversary of the adoption of the UDHR. Pinochet may have died without paying properly for his crimes but future dictators will rest less easy knowing that the chance of being made accountable is real.
Robertson is not overly sanguine about the end of impunity. The creation of an International Criminal Court is an advance but its jurisdiction is limited and largely restricted to referrals by the Security Council. The opposition of successive US governments to any possibility that their nationals might be made accountable to international justice is but one of the barriers to a system of international justice for war crimes and crimes against humanity that would potentially reach all perpetrators. Crimes Against Humanity acknowledges that accountability is more likely to occur where the perpetrator does not have a friend among the great powers. This will be more likely to happen where a state has disintegrated such that the only partially discredited notion of state sovereignty does not operate in the particular case.
Still, Robertson emphasise the advances which have been made. Who would have thought, he says, that, when the great post-Cold War predictions were being made in the early 1990s, that the US and the UK would combine to go to war in Kosovo to prevent an existing country, Serbia, from carrying out human rights abuses including ethnic cleansing on its own territory. And who would have thought that the new State of Kosovo would emerge from the international processes that followed that action.
The choice between impunity and accountability for serious crimes committed by governments and would be governments such as the Taliban raises serious foreign policy issues. Most countries pretend to principled policies but, often, they pursue self interest both as governments and as nation states. Australia, as a country that was influential in the formation of the UN and the adoption of the UDHR faces that same challenge. Each time a question arises as to whether serious allegations of war crimes or crimes against humanity, Australia has a choice as to whether it presses for a fair and energetic investigation of those allegations or whether it aids in sweeping the concerns under the carpet.8 In making those decisions, it can be guided by the values of human rights law or it can decide whether it needs votes on other issues from the miscreant government or one of its powerful friends. As citizens, we should keep an eye on whether our nation supports accountability for international crimes or impunity.9
The pursuit of principle and accountability for those who have committed crimes against humanity is not without its advantages. How much more justifiable and ultimately productive would the invasion of Iraq have been if the Coalition of the Willing had restricted its objectives to the arrest of Saddam Hussein and his chief lieutenants in order to place them on trial before a properly constituted and fairly conducted international tribunal.
The history which emerges from Crimes Against Humanity is not related in a vacuum. It is a history of the development of international human rights law. It is the history of the development of legislation (the treaties) and the jurisprudence by which those treaties have been interpreted and, on occasion, enforced. Thus each clause and each right and freedom and protection is described and expanded upon. Sometimes, the drafting is criticised (and often explained by the historical and power context in which it was negotiated). The way in which the clash between a particular protection and the needs of a particular government is mediated by concepts such as relevance and proportionality also emerges from the discussion.
Thus, Crimes Against Humanity provides access to whole areas of jurisprudence of many of which I had been unaware. I have long argued that capital punishment is wrong. As yet, it is not universally outlawed by international law. However, many restrictions apply and are developed as national and international courts develop human rights safeguards which make it more and more difficult for the penalty to be applied. Some of this jurisdiction is based upon article 6 of the ICCPR which places limits on the manner and circumstances in which the death penalty may be imposed. Other developments draw on the prohibition of torture and cruel and inhuman punishments in article 7. Mandatory death penalties are against international law as is the execution of pregnant women or those who were under 18 at the time the offence was committed.
Thus, Crimes Against Humanity has been my saviour. Through no fault of the book, my understanding and ability to articulate the norms of international human rights law has a long way to go. The book stays close to my desk. At times, it is close to my bed.
The lawyers I work with in ALHR are mostly much younger than I. Most of them have a much better grounding in the principles of international law, generally, and human rights law in particular than I do. I hope it is a generational thing related to the subjects we took at law school and the fact that we did not spend a number of our semesters on exchange studying at foreign universities. So, for my generation of lawyers, I cannot recommend Crimes Against Humanity enough. It will take you into a new world of understanding that will benefit your approach to and understanding of Australian domestic law.
On the other hand, it is not necessary to be as ignorant as I to benefit from Robertson’s analysis and presentation. The book is immensely interesting to read. It provides a great re-introduction to the history through which we have lived. It will reinforce your understanding of the law and values it discusses. And it will remain a useful reference text which you will be happy to keep close at hand.
Stephen Keim SC
Footnotes
- A review of Robertson’s The Tyrannicide Brief may be found here.
- The publisher’s web page for the book is here. The RRP is a mere $9.95.
- Allen Lane founded Penguin as a publishing house in 1935 as a means of publishing good quality reading material when he was unable to find a decent book in the kiosk at Exeter Railway Station. The imprint was established to publish quality non-fiction in hard back in 1967.
- The state party members of the UN Human Rights Commission are suitably criticised for their self-serving and unprincipled actions over many years.
- Robertson makes useful suggestions for reducing the delays experienced in the International Tribunal for the Former Yugoslavia. He suggests also that the International Criminal Court should have greater separation between the Court, itself, and the prosecution officials attached to the Court.
- The Geneva Conventions and the values they enshrine are also known as the law of war.
- For another excellent Australian perspective on the Pinochet litigation, see Byers, M., The Law and Politics of the Pinochet Case, (2000) 10 Duke Journal of Comparative and International Law 415. The third and definitive of the three House of Lords decisions is reported as R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte, 2 W.L.R. 827 (H.L. 1999).
- See the recent declaration of experienced prosecutors calling for support of international tribunals and accountability for governments who engage in crimes against their populations at http://jurist.org/paperchase/2010/09/prosecutors-urge-continued-support-of-international-tribunals.php
- The International Crisis Group (and other NGOs) have suggested that there is strong evidence available of war crimes committed by the Sri Lankan government and the Liberation Tigers of Tamil Eelam (“LTTE”).(See ICG Asia Report number 192 dated 17 May 2010.) So far, Australian foreign policy concerning Sri Lanka appears less concerned with supporting an effective international investigation and more concerned with enlisting the Sri Lankan government’s assistance to prevent Tamils seeking asylum in Australia from reaching our shores or in ensuring the forcible return of such Tamils who do make it to Australian waters.
