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Vol. 25 No. 1 · 2 January 2003

No More Victors’ Justice?

Stephen Sedley considers the future of international criminal jurisdiction

On 11 August 1942 Joseph Bursztyn, a doctor in the French Resistance, was executed as a hostage in reprisal for Resistance attacks on German troops occupying Paris. The previous month his wife had been arrested by the Vichy police and deported to the German death camps. Their small daughter, Claire, who was saved by neighbours, this summer saw Maurice Papon, who was responsible for her mother’s deportation, released after less than three years in prison.

On a summer’s day in 1944, with France newly liberated, Henri Boleslawski, who during the Vichy years had worked as an official in the préfecture of Tulle forging identity documents for the Resistance and for the Allied airmen they were sheltering, put his daughter, Liliane, on his shoulders to watch the execution of a collaborator in the place du Champ de Mars. For him, a moment of historic justice; for the child, an image of cruelty which has never left her.

My purpose in recounting these things is not only to mark the memory, out of the hundreds of thousands of courageous individuals who lost or risked their lives throughout Occupied Europe, of two who happen to have been members of my family. It is to point up the complex meaning of justice in a world broken apart, as the 20th-century world was, by conflicts in which justice and power were inexorably and repeatedly collapsed into one another. In a militarily occupied country, versions of justice necessarily start from opposite and irreconcilable premises. The occupying power builds on its de facto authority, the occupied population on its moral legitimacy. Who tries and executes whom in such a conflict depends on the momentary possession of power, nothing else. Justice follows; it does not lead.

When responsibility for conflict is audited, as responsibility for the Second World War was audited in Nuremberg and Tokyo, it has historically been the prerogative of the victors to determine where justice lies. When in 1960 Adolf Eichmann was tracked down in Argentina and kidnapped by Israel, the want of any international court to try him and the want of any solid basis in international law for the exercise of jurisdiction by Israel were not allowed to stand between him and the gallows. The watching world, myself included, asked itself only which was worse: to try him or to let him go. For the rest, justice once again followed in the wake of power.

That, and very much more, was the 20th century, the bloodiest yet. It has been estimated that 187 million people perished in its wars. The 21st century is fully capable of surpassing it; but I am not willing to assume that it will be a race to the bottom. Without becoming a proleptic Whig historian, I want to look at the almost counterfactual emergence in very recent years of an institutional shift towards the recognition and enforcement by impartial tribunals of individual responsibility for the kinds of crime which for most of the 20th century were perpetrated in the name of states and regarded as almost entirely beyond the reach of legal process.

I say ‘almost entirely’ because, while the Allies’ tribunals at Nuremberg and Tokyo dispensed individual justice on charges of levying a war of aggression and of crimes against peace, much wider preparation had in fact been made for a new judicial order in the event of an Allied victory. In January 1942 the Declaration of St James had placed among the Allies’ principal war aims the punishment of those who, at whatever level, had been responsible for civilian massacres and the execution of hostages; though by the end of the war the UN War Crimes Commission was in doubt as to whether the taking of hostages was itself a war crime – oddly, since the point of taking hostages is to be able to execute them. In the end, it was the newly liberated states and the Allied powers who conducted local war crimes trials on a now forgotten scale: by the early part of 1948 almost two thousand Germans and Japanese who had had positions of command had been sentenced to death by these tribunals for atrocities against civilians or prisoners; and the trials ran on into recent years as some of the surviving war criminals – Barbie, Touvier and Papon in France, for example – were finally flushed out.

There remain, however, stronger criticisms of the war crimes tribunals than the laxity of procedure which so enraged Norman Birkett, the alternate British judge on the Nuremberg court. The composition of the tribunals had no semblance of impartiality: every judge was a national of one of the victorious Allies. The dissent of the Indian judge at Tokyo, Justice Radhabinod Pal, still stings in its denunciation of the retrospective criminalisation of aggressive war (meaning, inevitably, the war waged by the loser); but his equally passionate denunciation of individual criminal responsibility for acts of state rings less true today. It is nevertheless a peculiar irony, in the light of the crisis now afflicting the newborn International Criminal Court, that one reason Justice Pal was able to hold that there was no customary law making officers of state personally responsible for atrocities committed under their orders was that in 1919 the two American members of the 15-man commission appointed to report to the Preliminary Peace Conference had refused to support any notion that the violation of the norms of war or the ‘elementary laws of humanity’ could be a crime. Their view that these were questions only of ‘moral law’ had resulted in the exclusion from the Treaty of Versailles of any provision for the trial of crimes against humanity, notwithstanding the availability of potent evidence of such crimes, the Turkish massacre of the Armenians among them.

From the aftermath of the most calamitous wars in human history, not forgetting that it was from the ashes of the second of them that the great human rights instruments of our era emerged, let me move to another time and place: London, 25 November 1998. Senator Augusto Pinochet Ugarte has been arrested in the course of one of his occasional visits to London on two provisional warrants issued by metropolitan stipendiary magistrates in response to an international warrant issued by the central criminal court in Madrid, on charges of murder committed between 1973 and 1983, and of torture between 1988 and 1992. A divisional court presided over by Lord Bingham has quashed both warrants on the ground that as a former head of state Pinochet is by statute immune from prosecution, but has stayed the quashing of the second – the torture warrant – in order that the Commissioner of Metropolitan Police and the Government of Spain can appeal to the House of Lords. Working at remarkable speed (Pinochet was arrested in mid-October), the judicial committee of the House is ready to give judgment.

We do not televise court proceedings in this country. The hearing before the Law Lords took place, as it almost always does, in an upstairs committee room in the Palace of Westminster. But because the Law Lords are, constitutionally speaking, a committee of the upper legislative house, it is in the chamber of the House of Lords that they assemble to vote on the outcomes of the cases they have been hearing. It was simply because both houses of the legislature are equipped with television cameras for the broadcasting of debates that the cameras were rolling as the Law Lords rose in turn to vote on the outcome of the appeal. I mention this because it has come to be believed that in a sudden rush of PR-consciousness special arrangements were made to televise the delivery of the first Pinochet judgment in the House of Lords. The truth is that its dramatic worldwide impact was one of those pieces of historical good fortune in which Britain specialises.

Few who watched it, whether live or on the news, will forget how, with the escalating tension of a penalty shoot-out, Lord Slynn and Lord Lloyd rose in turn to vote for the dismissal of the appeal; and then how Lord Nicholls, Lord Steyn and Lord Hoffmann rose one by one to cast their votes for allowing it. The extradition proceedings were to go ahead: there was to be no hiding place in the civilised world for torturers, whatever their status.

Satellites carried the words and images round the world. In Chile tens of thousands of people watched the judgment on open-air screens, erupting in either jubilation or anger at the outcome. And although this decision had to be unmade and then remade by a differently constituted committee of the House, the key outcome was the same: Senator Pinochet must face the accusation of torture (not, ironically, that of murder), because the adherence of Chile along with the UK and Spain to the Torture Convention had obliged it from at the latest 8 December 1988 to withdraw any state immunities from torturers. In spite of the significant differences of legal reasoning between the first and third judgments of the House, due at least in part to the different ways in which the appeal was argued, the epoch-making message remained. On the allegations of torture and conspiracy to torture which postdated December 1988, Senator Pinochet could be extradited.

Subsequently, the Home Secretary accepted that Senator Pinochet was medically unfit to face trial in Spain, and he was allowed to return to Chile. But Britain’s sense of pioneering rectitude, justified though it may be, has tended to eclipse the role of the Chilean judiciary. In particular, it is widely believed in this country that it was only our extradition process which finally kickstarted legal proceedings against Pinochet in his home country.

In fact, in addition to having been under investigation in Spain since 1996 for the killing and torture of Spanish nationals, Pinochet was already under investigation for genocide and other crimes in his own country when he was arrested in London. In January 1998, nine months before his arrest here, after he had relinquished his Presidential status and while he was in the process of exchanging his command of the Armed Forces for a life senatorship, a complaint was laid against him in Santiago by Gladys Marín. Under the Chilean Constitution, holders of high public office – bishops, senators, generals, judges and the like – are immune from the practically automatic investigation which such a complaint ordinarily triggers. The modern purpose of the privilege (though it has a dubious past) is to prevent the harassment of public figures by baseless complaints; but the immediate effect of the lodging of a complaint against a holder of high office is that, instead of an ordinary examining magistrate, a member of the senior judiciary is appointed to inquire into it. If this judge finds evidence both of a crime and of the implication in it of the accused public figure, the Constitutional immunity can be lifted.

When Gladys Marín laid her complaint, the appeal court judge whose name stood next on the rota for such tasks was Juan Guzmán Tapía. Guzmán has always been open about his political support, as a citizen, for the Pinochet regime. But as a judge he set about his task impartially and conscientiously, and the evidence he uncovered was horrifying. A Chilean investigating judge in homicide cases fulfils among his other functions those of a coroner in our system, and Guzmán’s room in the law courts gradually became stacked with dozens of boxes of human remains as he tracked the course of the ‘caravan of death’. By the time of Pinochet’s return to Chile, his constitutional immunity had been lifted by the Supreme Court, Guzmán and his family were under 24-hour armed guard and a major indictment was in preparation, charging Pinochet and senior Army officers with conspiracy to kidnap and to murder.

The lifting of Pinochet’s Constitutional immunity was itself a mark of the sea-change which the later 1990s had witnessed in the structure and ethos of the Chilean Supreme Court. It was a court which had acquired a reputation for quiescence in the face of official abuses (it had managed to hold that even though Chile had from 1974 been officially in a state of war, the Geneva and Hague Conventions did not apply to it); but more recently it had withheld the benefit of a general amnesty from five senior military officers implicated in the caravan of death because the amnesty did not cover aggravated kidnapping. The completeness of military impunity had already been punctured by the conviction, under pressure from Pinochet’s main initial backer, the United States, of the head of the secret police, General Manuel Contreras, for organising the assassination in Washington in 1976 of the exiled Chilean politician Orlando Letelier and an American colleague. (I mention this not only because it shed some valuable light in a dark place but because it illustrates one of the paradoxes to which I shall return: the contrast between the sensitivity of the United States to anything affecting its own citizens or territory and its seeming indifference to similar sensibilities on the part of other states.) But it is the view of commentators both in and outside Chile that the stand taken by the House of Lords did as much as anything to bring about the momentous decision of the Supreme Court to lift Pinochet’s Constitutional immunity so that Guzmán could proceed with his indictment.

Pinochet’s legal advisers now advanced the same case of physical and mental frailty that had persuaded the British Home Secretary to discharge him. Guzmán, having read the reports from the UK with a critical eye, bespoke fresh ones. They satisfied him that, whatever the penalty might turn out to be, the Senator was fit to stand trial. Pinochet appealed against this decision. Last summer, after an inexplicably long delay, the Supreme Court overset the judge’s finding by four votes to one and held Pinochet unfit to face the trial to which a now formidable body of evidence was pointing. The indictment is proceeding nevertheless against the other accused, and their eventual trial may reveal to what extent, if any, Chile’s ordeal of torture, disappearance and killing was Pinochet’s responsibility.

Although the question of universal jurisdiction was raised in the Pinochet proceedings before the House of Lords, it was not found necessary to determine it. Universal jurisdiction is the power vested in states by customary international law to allow them to try certain grave crimes no matter where or by whom or against whom they were committed. It afforded probably the best legal foundation for Israel’s trial of Eichmann. But universal jurisdiction under customary international law tends to be marginalised in modern state practice by the incorporation of treaties either by automatic constitutional assimilation, as in the monist system of France, or by the domestic enactment of treaty provisions in common law countries such as the UK. The 1984 Torture Convention and the 1979 Hostages Convention have both been carried into our statute law, vesting universal jurisdiction in the UK’s courts as the conventions themselves require; though at least two of the Law Lords in the Pinochet cases were prepared to hold that the prohibition of torture was already a peremptory norm of international law which it required no treaty to criminalise.

Thus the domestic courts of states remain the primary forums for the prosecution of crimes against humanity. States have not merely the power but the obligation to prosecute offenders. In this situation the immunity of state officials becomes of critical importance, and it was on this immunity that Pinochet relied: his acts, whatever their criminality, had been the acts of a head of state and for that reason, he contended, were not justiciable at the instance of any other state. This argument the House of Lords accepted, but only up to the time when the Torture Convention took this defence away. The majority drew a distinction between crimes committed by a head of state in a personal capacity and crimes committed in an official capacity: international crimes committed in a personal capacity would be justiciable, as US courts had held in relation to General Noriega, the former Panamanian head of state now serving a life sentence in the US for narcotics crimes committed while in office; those committed in an official capacity would not be. There is something odd, indeed odious, about this. If, instead of trafficking privately in drugs, Noriega had used the apparatus of the state to do it, would he have been entitled to immunity? What moral or legal logic accords immunity only to the criminal who manages to subvert and abuse the powers of the state, so that the very magnitude of his crime (torture apart) becomes his shield?

These issues will not go away for a long time yet. But we do seem to have reached a plateau from which it is possible to get a better perspective on the terrain ahead.

In April 2000 a Belgian investigating judge issued an international arrest warrant against the then Foreign Minister of the Democratic Republic of the Congo, Abdulaye Yerodia Ndombasi, alleging crimes against international humanitarian law. The Congo applied to the International Court of Justice in the Hague, which tries disputes between states, to set aside the warrant on two grounds. The first was that Belgium’s assertion of universal jurisdiction was in itself a violation of the Congo’s sovereignty. This ground was wisely dropped: universal jurisdiction is not such bad news. The case proceeded solely on the second ground – that the warrant violated the principle of diplomatic immunity. On this the Congo succeeded. The decision has been deplored as a setback for international humanitarian law, but in my view it is not. The rule it endorses is much less important than the exceptions with which it surrounds the rule.

The Congo’s own argument involved the exemplary use of Occam’s razor on a case bristling with difficulties, paring it down to the bare and incontestable fact that Yerodia was a Government minister on the day the warrant was issued. It also, I suspect, had on its side the unspoken fact that of all countries to point the finger of human rights abuse at the Congo, there could not have been a less appropriate one than Belgium. It was enough for the Congo to succeed that the Court concluded that, on grounds of state convenience and comity, incumbent ministers enjoy immunity from proceedings before the courts of other nations, however grave the crimes with which they are charged. For reasons I have touched on even this seems debatable. But, importantly, the decision recognised only immunity – a temporary and localised protection – and not impunity; it accorded it to incumbent ministers, not to former ones; it accorded it to them in international law but not domestically; and it limited the immunity to proceedings before other national courts, noting that this was compatible with the absence of any such immunity before the international tribunals at Nuremberg and Tokyo and the International Criminal Tribunals dealing with events in the former Yugoslavia and in Rwanda.

This jurisprudence, important in itself, is enhanced by the separate and partly concurring opinion of three of the most influential judges on the Court: Dame Rosalyn Higgins, Judge Kooijmans and Judge Buergenthal. They inverted the rule-and-exception paradigm, stressing that immunity was the exception and justiciability the rule. Pointing to the changing standards and scope of state immunity, they went on:

A comparable development can be observed in the field of international criminal law . . . A gradual movement towards bases of jurisdiction other than territoriality can be discerned. This slow but steady shifting towards a more extensive application of extraterritorial jurisdiction by states reflects the emergence of values which enjoy an ever increasing recognition in international society. One such value is the importance of the punishment of perpetrators of international crimes . . . This development not only has led to the establishment of new international tribunals and treaty systems in which new competences are attributed to national courts but also to the recognition of other, non-territorially based grounds of national jurisdiction.

They cited Oppenheim, the leading work on international law:

While no general rule of positive international law can as yet be asserted which gives states the right to punish foreign nationals for crimes against humanity in the same way as they are, for instance, entitled to punish acts of piracy, there are clear indications pointing to the gradual evolution of a significant principle of international law to that effect.

There is, however, a downside to the expansion of national jurisdictions to try the gravest crimes. It was articulated by Lord Browne-Wilkinson in his note of reservation to the Princeton principles of universal jurisdiction issued in early 2001 by a working group of international lawyers assembled by the International Commission of Jurists:

the Princeton Principles propose that individual national courts should exercise such jurisdiction against nationals of a state which has not agreed to such jurisdiction . . . If the law were to be so established, states antipathetic to Western powers would be likely to seize both active and retired officials and military personnel of such Western powers and stage a show trial for alleged international crimes. Conversely, zealots in Western states might launch prosecutions against, for example, Islamic extremists for their terrorist activities.

The critical issue of the consent of the state to which the accused belongs is, however, not limited to his or her trial before the courts of another state. It has also come to dog the greatest of all modern initiatives in this field, the International Criminal Court which came into existence last summer under the provisions of the Rome Statute of 1998.

As I say, this development seems almost counterfactual. As long ago as 1937 the League of Nations sponsored a Convention for the Creation of an International Criminal Court, but nothing came of it. In the postwar years both the Genocide Convention and the Apartheid Convention envisaged international tribunals to try the crimes they were directed against, but neither these provisions nor the General Assembly’s request to the International Law Commission to report on the setting up of an international criminal court survived the hostilities of the Cold War.

There is, however, at least one historical precedent for an international court of criminal jurisdiction. In 1817 Britain concluded treaties with Portugal and Spain outlawing slave-trading (though in the case of Portugal only north of the equator). The treaties gave British warships a power of search and seizure, and any consequent accusations of slave-trading – a violation, by then, of customary international law – were to be formally tried by ‘mixed courts’ composed of two judges, one Spanish and one British. These courts remained in being, on paper at least, from 1819 until the mid-1860s, and their history contains an odd foretaste of contemporary events. The Government of the United States, which by then had halted the importation of slaves, though not their sale or use, refused to participate in these treaties. It is understandable that the US was not prepared to have its ships searched by British Naval patrols; but one damaging consequence, which materially helped the prolongation of the slave trade, was that any slaver flying the American flag could continue to trade with impunity.

The proposal for an international criminal court was revived in 1989, when Trinidad and other states began to press the UN to set up a tribunal to deal with drug-trafficking and terrorism. The slow work which followed had a dramatic spin-off in the setting up by the UN Security Council of international criminal tribunals specifically to try the authors of atrocities in Rwanda and the former Yugoslavia. These two courts, especially the latter (to the standing of which the South African jurist Richard Goldstone, as chief prosecutor, and the British judge Richard May have made important contributions), have served as test-beds for a number of difficult procedural and substantive issues, such as the dovetailing of protection for vulnerable witnesses with the right of the accused to know his accuser, and their rules and jurisprudence are likely to be of importance to the ICC.

The signing of the Rome Statute on 17 July 1998 by 120 nations, and its ratification in April 2002 by the requisite 60 states, the United Kingdom among them, was the culmination of a complex diplomatic history. Remarkably, it was at a point in the mid-1990s when the whole project seemed irreversibly becalmed that a determined intervention by a congeries of states and NGOs, among the latter Amnesty International and Human Rights Watch, stirred the diplomats back into decisive action. The vote on the final draft was secret, but it is believed that seven states, including China and India and the United States, having already diluted it by forcing a series of compromises, voted against it.

Unlike the Yugoslav and Rwandan tribunals, which have power to call in cases from national courts, the ICC operates on the principle of subsidiarity. The primary obligation still rests on states to prosecute before their own courts; the ICC is there only to do jobs that states themselves will not or cannot do. But the sharpest lessons of Nuremberg and Tokyo have been learned: the judges will not represent victor states; jurisdiction is not retroactive; the Court’s process will combine the civil law system’s close supervision of the prosecution with the common law’s adversarial trial; and, lest there be any doubt, the Statute spells out the personal responsibility of state officials, however high, for crimes they have instigated. The Court has jurisdiction over individuals who either are nationals of a ratifying state or have committed crimes on a ratifying state’s territory. Thus a crime against humanity or a war crime committed in a ratifying state is justiciable (at least in principle) whatever the nationality of the perpetrator. If it is committed in a non-ratifying state, only a Security Council resolution can create jurisdiction, and such a resolution is subject to unilateral veto.

In spite of its historic importance, the Rome Statute in its final form is a heavily compromised document. The Vatican, present in the capacity of an independent state, joined with Catholic and Islamic states in limiting the proscription in Article 7 of persecution on grounds of gender to the male and the female. Thus the mass persecution of homosexuals, in which the Vatican played an ignobly quiescent role in the Nazi period, has still not been explicitly stigmatised by the international community and will be dependent on future interpretation of the Statute. The use of land-mines and of weapons of indiscriminate mass destruction is not unequivocally criminalised by Article 8 because some of the major powers wanted to keep them, and because the International Court of Justice had in 1996 left open the legality of limited and purely defensive nuclear strikes. In return, the non-nuclear powers blocked the attempt to criminalise chemical and biological warfare. Article 8 also omits the historic crime of waging aggressive war because the diplomats could not agree on a definition of it: jurisdiction over aggression is created by Article 5 but its operation is deferred until the Statute is reviewed in 2009. In this way, as Geoffrey Robertson remarks in Crimes against Humanity,* a great opportunity was missed to outlaw war as an instrument of national policy.

It is saddening that what I – and many others – nevertheless believe to be the greatest single advance ever made in international humanitarian law enforcement is taking place under the shadow of American exceptionalism. It is ironic, too, that the desire to be exempted from external jurisdiction should affect a state which has historically claimed and exercised its own long-arm jurisdiction over anything perceived to threaten its national interests. It is also a state which has sufficient regard for legality – sometimes at least – to put its own military personnel on trial, most recently the two pilots who bombed Canadian troops in Afghanistan. Its Ninth Circuit Federal Appeals Court in 1992 held that ex-President Marcos of the Philippines, who had fled to Hawaii before he died, had no entitlement to state immunity for the acts of torture and arbitrary killing for which he found himself sued in his new homeland.

But so far as universal or international jurisdiction to try persons accused of crimes against humanity is concerned, the crude fact is that the United States is in favour of it only if they are not US citizens. Following its refusal (in some very dubious company) to sign the 1997 Land-Mines Convention and its endeavour earlier this year to block the adoption of the long-awaited optional protocol to the Torture Convention allowing independent inspection of places of detention, the US is currently seeking a series of bilateral agreements with states that have ratified the Rome Statute to exempt US citizens from all process before the International Criminal Court. It argues – though the point is not free from doubt – that this is made possible by the bilateral opt-out provision inserted into the Statute, allowing any state with the clout to do so to secure agreements with other states that the latter will not hand over the former’s personnel to the ICC. Under this provision Romania, Israel, East Timor and Tajikistan have each for their own reasons now agreed that they will not hand over to the ICC US personnel accused of war crimes or crimes against humanity. Other states, including small ones like Switzerland and weak ones like Yugoslavia, have refused to make such agreements. The European Union tried to stand firm, but has now adopted guidelines for member states who want to do similar deals, seeking to maintain the no-impunity principle but contemplating ‘solutions’ by individual states. Where, morally and legally, this course would leave Britain, which has until now been one of the strongest sponsors of the Rome Statute, is for others to say.

A non-ratifying country such as Israel has little to fear from the ICC, since the external territory where its troops are deployed at present lacks statehood, and the US will ensure that the Security Council’s power of referral is not used against it. Moreover, in the absence of a Security Council referral, despots in non-ratifying states who commit crimes against their own populations will still go unpunished. But the US, which is in a different position because its Armed Forces are periodically deployed on or over the territories of states which have ratified or may yet ratify the Statute, has now legislated to give the Commander-in-Chief authority to take any necessary steps to secure the release of any US personnel brought before the ICC.

It is not easy to empathise with the US Administration’s critique that the ICC’s prosecutor will be independent of political control. That is the point. The expressed concern of the US that the ICC may be used as a vehicle for politically motivated accusations against American citizens is understandable; but there are several things which it overlooks. One is that the Rome Statute has made provision for a strong and independent prosecutor and has laid down careful procedures for ensuring that only well-founded cases come to trial. Another is the fact that accusations may be politically motivated but true: one might instance, with the assent of most Americans, the accusations laid in the current trial against Slobodan Milosevic. A third is that, as the case of Lieutenant Calley reminds us, Americans too are capable of committing crimes against humanity. Even the recent official acceptance, reported in the Herald Tribune, that it is not – symbolically speaking – Lieutenant Calley but Pinochet’s sponsor Dr Kissinger whose position really troubles the US need not be a source of concern: Article 11 limits the Court’s jurisdiction to acts committed after the entry of the Rome Statute into force. In contrast to their Government, not only American NGOs and legal commentators but the American Bar Association have supported the vesting of universal jurisdiction in the Court. The leading American scholars Steven Ratner and Jason Abrams describe the Rome Statute as ‘an immensely important development for international human rights, humanitarian and criminal law, in terms both of its institutional contribution to the law’s implementation and its codification and progressive development of the substantive law.’ This is above all a court in which, for the first time in history, justice need not simply be victors’ justice.

A profound shift of consensus is eroding the old impunities afforded by statehood and state office to some of the world’s major criminals. At the level of realpolitik the development might be considered no more than a useful check on the warlord hegemonies that have filled power vacuums in collapsing states. But it is much more than this. It is the vehicle by which the message of the Pinochet case is now being carried across the globe: for the first time in history, individuals who have used state power to commit crimes against their own or other peoples may face an independent, impartial and permanent tribunal which possesses the authority of the international community to try and to punish them.

If this epoch-making jurisdiction is not simply to degenerate into the 21st century’s version of victors’ justice, into a regime in which the war criminals of the lesser nations get their deserts while nationals of the greatest power are shielded from all process except that which their own state elects to deploy against them, the long arm of international humanitarian law has to be able to reach everyone against whom there is a triable case, and the mailed fist has to be there to punish those who are found guilty by due process. A system which replicates the very insolence of office from which human rights abuses spring cannot properly call itself a system of justice. One law for the powerful and another for the weak is no law at all.

This is the crossroads at which Britain and the United States stand today, though they are not – or not yet – facing in the same direction. Their choices will do much to determine whether the authors of crimes against humanity, whoever and wherever they are, will in the future answer to a new and better system of justice, or whether international criminal jurisdiction is instead to slide back into its ambivalent 20th-century role as a secondary and localised manifestation of military and political power.

This essay is based on Stephen Sedley’s Plymouth Law Society’s Pilgrim Fathers Lecture, given last autumn

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