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.

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

[*] Penguin, 688 pp., £10.99, July 2002, 0 14 101014 2.

[†] Accountability for Human Rights Atrocities in International Law (Oxford, 484 pp., £60 and £16.99, April 2001, 0 19 924833 8).