Preface
Laws and legal systems pilot us along the puzzling path from birth to death. Good laws, properly applied, can save us from harm; when not so good they can expose us to risk – or worse. But the law in all its forms actually does much more. It may be thought that the citizen who spends an entire life obedient to national laws can die confident of her or his goodness, or at least without any sense of having done wrong. Thus, the 19th-century judge who sentenced Oscar Wilde to imprisonment for homosexual offences will have died a contented death. Likewise, the 20thcentury judge and jurymen who between them brought intellectually limited Timothy Evans to conviction and death by hanging for a murder he did not commit. Similarly, the judge who sentenced brilliant mathematician Alan Turing, who had broken the Nazi wartime codes, to submit to medical treatment for homosexuality, or the Home Secretaries who refused to commute death sentences on Ruth Ellis, the last woman in England to be hanged for murder, and 19-year-old Derek Bentley for the ‘joint enterprise’ shooting of a policeman by his younger fellow burglar. These courts would now be regarded as having done serious wrong; there can be no real excuse for their actions, save through blaming the fact that the laws they followed reflected moral standards that are never universal over time and place. The judges’ sense of contentment at the end of lives in which they had damaged or killed fellow citizens – their sense of personal goodness – was allowed only by laws that can now be judged immoral and wrong. Of course the jurors – and maybe the judge – in the Timothy Evans case could claim dilution of culpability because they followed the law’s ‘superior orders’, and I include them as an example to add difficulty to our thinking about the issue I raise. The Home Secretary in the Bentley case, to his great credit, drafted much of the European
2
Justice for all, and how to achieve it
Preface
3
Preface
Laws and legal systems pilot us along the puzzling path from birth to death. Good laws, properly applied, can save us from harm; when not so good they can expose us to risk – or worse. But the law in all its forms actually does much more. It may be thought that the citizen who spends an entire life obedient to national laws can die confident of her or his goodness, or at least without any sense of having done wrong. Thus, the 19th-century judge who sentenced Oscar Wilde to imprisonment for homosexual offences will have died a contented death. Likewise, the 20thcentury judge and jurymen who between them brought intellectually limited Timothy Evans to conviction and death by hanging for a murder he did not commit. Similarly, the judge who sentenced brilliant mathematician Alan Turing, who had broken the Nazi wartime codes, to submit to medical treatment for homosexuality, or the Home Secretaries who refused to commute death sentences on Ruth Ellis, the last woman in England to be hanged for murder, and 19-year-old Derek Bentley for the ‘joint enterprise’ shooting of a policeman by his younger fellow burglar. These courts would now be regarded as having done serious wrong; there can be no real excuse for their actions, save through blaming the fact that the laws they followed reflected moral standards that are never universal over time and place. The judges’ sense of contentment at the end of lives in which they had damaged or killed fellow citizens – their sense of personal goodness – was allowed only by laws that can now be judged immoral and wrong. Of course the jurors – and maybe the judge – in the Timothy Evans case could claim dilution of culpability because they followed the law’s ‘superior orders’, and I include them as an example to add difficulty to our thinking about the issue I raise. The Home Secretary in the Bentley case, to his great credit, drafted much of the European
2
Justice for all, and how to achieve it
Preface
3
LAW AND PROCEDURE
In any democratic country decision-making about international treaties that generate international law can theoretically be traced through various government bodies back to the elector citizen. In reality elections are rarely, if ever, fought on the detail of some international treaty. In the result the international law with which we are concerned has developed piecemeal and at a distance from the voting citizen anywhere. Racing by the instructions for conduct of war to be found in Deuteronomy 20: 10–18, the Lieber Code for the American Civil War, and the Hague Conventions of 1899 and 1907, we may eventually arrive at the drafting of the statute for trials at Nuremberg. This did much to define, and led to further definition of, the modern law, but that was – as Professor William Schabas argues – done in a calculated way.12 To understand his argument it is necessary first to remind ourselves that crimes are not in any sense absolute, whatever the informed modern citizen may think about, for example, the crime of genocide. Crimes are selections by category of human behaviour and the same name for a crime is often differently defined in one nation from how it is defined in another. Murder in the UK may be different in definition – and thus in the category of acts identified as murder – from murder in the US. And crimes once defined can easily enough be divided further, as some crimes (although not murder) have been in the UK according to whether they are or are not ‘racially aggravated’. On analysis, genocide is a sub-set of crimes against humanity, as now defined. The phrase ‘Crimes against Humanity’ had been in use in ordinary language for over 200 years. One attributed early use is to French revolutionary Maximilien Robespierre, who described Louis XVI as a ‘criminel envers l’humanité’ (‘criminal against humanity’). In 1860 the electoral platform on which Abraham Lincoln stood for president included the following statement: ‘We brand the recent re-opening of the African slave trade, under the cover of our national flag, aided by perversions of judicial power, as a crime against humanity.’ The term started its shrinking of meaning to a usable legal term in the 1907 Hague Convention preamble, which codified the customary law of armed conflict based on existing state practices
20
Justice for all, and how to achieve it
as being derived from those values and principles deemed to constitute the ‘laws of humanity’, as reflected throughout history in different cultures. Its first formal appearance was in a declaration concerning the Armenian massacres made by the governments of France, Great Britain and Russia on 24 May 1915 (‘In the presence of these new crimes of Turkey against humanity and civilization …’). Interestingly – and connected to what follows – the US did not join in this denunciation and US Secretary of State Robert Lansing referred to what he called the ‘more or less justifiable’ right of the Turkish government to deport the Armenians to the extent that they lived within the zone of military operations. After World War II, the Nuremberg trials included allegations of crimes against humanity. In the London Conference of 1945 that preceded the Nuremberg trials, where the crime was defined, US prosecutor Justice Jackson, echoing World War I Secretary of State Lansing, made it quite clear that it was no part of the US’s functions to interfere with the internal affairs of another country, even if they were exterminating their citizens. Jackson explained – candidly – that this reflected how a broader definition of crimes against humanity that could allow the Allies to try the Nazis for acts not linked to war could expose the US to the same pursuit for things it had done in the past. No doubt the UK agreed with the outcome and the reasoning. But the Nazis were to be tried for what they had done not just to the populations of other countries but also to their own people in the course of the war. Thus, although it was possible to draft an offence as a ‘crime against humanity’ that covered what the Nazis did to the Jews in the war, such crimes were only to be justiciable by the tribunal if they involved: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.13 The Tribunal’s judgment in 1946 followed the Statute14 and Raphael Lemkin, the man who had coined the word ‘genocide’ in
Chapter 1: International Criminal Tribunals: Experiments? Works in Progress?
21
LAW AND PROCEDURE
In any democratic country decision-making about international treaties that generate international law can theoretically be traced through various government bodies back to the elector citizen. In reality elections are rarely, if ever, fought on the detail of some international treaty. In the result the international law with which we are concerned has developed piecemeal and at a distance from the voting citizen anywhere. Racing by the instructions for conduct of war to be found in Deuteronomy 20: 10–18, the Lieber Code for the American Civil War, and the Hague Conventions of 1899 and 1907, we may eventually arrive at the drafting of the statute for trials at Nuremberg. This did much to define, and led to further definition of, the modern law, but that was – as Professor William Schabas argues – done in a calculated way.12 To understand his argument it is necessary first to remind ourselves that crimes are not in any sense absolute, whatever the informed modern citizen may think about, for example, the crime of genocide. Crimes are selections by category of human behaviour and the same name for a crime is often differently defined in one nation from how it is defined in another. Murder in the UK may be different in definition – and thus in the category of acts identified as murder – from murder in the US. And crimes once defined can easily enough be divided further, as some crimes (although not murder) have been in the UK according to whether they are or are not ‘racially aggravated’. On analysis, genocide is a sub-set of crimes against humanity, as now defined. The phrase ‘Crimes against Humanity’ had been in use in ordinary language for over 200 years. One attributed early use is to French revolutionary Maximilien Robespierre, who described Louis XVI as a ‘criminel envers l’humanité’ (‘criminal against humanity’). In 1860 the electoral platform on which Abraham Lincoln stood for president included the following statement: ‘We brand the recent re-opening of the African slave trade, under the cover of our national flag, aided by perversions of judicial power, as a crime against humanity.’ The term started its shrinking of meaning to a usable legal term in the 1907 Hague Convention preamble, which codified the customary law of armed conflict based on existing state practices
20
Justice for all, and how to achieve it
as being derived from those values and principles deemed to constitute the ‘laws of humanity’, as reflected throughout history in different cultures. Its first formal appearance was in a declaration concerning the Armenian massacres made by the governments of France, Great Britain and Russia on 24 May 1915 (‘In the presence of these new crimes of Turkey against humanity and civilization …’). Interestingly – and connected to what follows – the US did not join in this denunciation and US Secretary of State Robert Lansing referred to what he called the ‘more or less justifiable’ right of the Turkish government to deport the Armenians to the extent that they lived within the zone of military operations. After World War II, the Nuremberg trials included allegations of crimes against humanity. In the London Conference of 1945 that preceded the Nuremberg trials, where the crime was defined, US prosecutor Justice Jackson, echoing World War I Secretary of State Lansing, made it quite clear that it was no part of the US’s functions to interfere with the internal affairs of another country, even if they were exterminating their citizens. Jackson explained – candidly – that this reflected how a broader definition of crimes against humanity that could allow the Allies to try the Nazis for acts not linked to war could expose the US to the same pursuit for things it had done in the past. No doubt the UK agreed with the outcome and the reasoning. But the Nazis were to be tried for what they had done not just to the populations of other countries but also to their own people in the course of the war. Thus, although it was possible to draft an offence as a ‘crime against humanity’ that covered what the Nazis did to the Jews in the war, such crimes were only to be justiciable by the tribunal if they involved: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.13 The Tribunal’s judgment in 1946 followed the Statute14 and Raphael Lemkin, the man who had coined the word ‘genocide’ in
Chapter 1: International Criminal Tribunals: Experiments? Works in Progress?
21
Chapter 2
The End of Slobodan Milošević Slobodan Milošević faced three indictments covering the three major conflicts of the 1990s in the western Balkans: Croatia, Bosnia and Kosovo. He was surrendered to The Hague for trial in 2001 by the successor government of Prime Minister Zoran Đinđić, himself assassinated by those loyal to Milošević in 2003. The trial lasted 467 days; 350 witnesses gave evidence in person; 59 written witness statements were read. The transcript of the trial occupies 49,191 pages and there were approximately 150,000 pages of prosecution paper exhibits and 25,000 pages of defence exhibits. The prosecution served on the defence at least 1,000,000 pages of ‘exculpatory material’. Milošević died in his cell shortly before the end of the time allowed for his case, on 11 March 2006. There were no closing arguments and no judgment.
30
Justice for all, and how to achieve it
Original lecture delivered on 2 October 2012.
31
Chapter 2
The End of Slobodan Milošević Slobodan Milošević faced three indictments covering the three major conflicts of the 1990s in the western Balkans: Croatia, Bosnia and Kosovo. He was surrendered to The Hague for trial in 2001 by the successor government of Prime Minister Zoran Đinđić, himself assassinated by those loyal to Milošević in 2003. The trial lasted 467 days; 350 witnesses gave evidence in person; 59 written witness statements were read. The transcript of the trial occupies 49,191 pages and there were approximately 150,000 pages of prosecution paper exhibits and 25,000 pages of defence exhibits. The prosecution served on the defence at least 1,000,000 pages of ‘exculpatory material’. Milošević died in his cell shortly before the end of the time allowed for his case, on 11 March 2006. There were no closing arguments and no judgment.
30
Justice for all, and how to achieve it
Original lecture delivered on 2 October 2012.
31
Chapter 3
Legal Process as a Tool to Rewrite History The war crimes trials at the ICTY produced a huge record of trial evidence. ICTY trials had several objectives, including bringing retribution and achieving deterrence, but they never sought to write history; every trial record produces at least two competing narratives, a prosecution narrative and a defence narrative or narratives, none of which may be accurate. Yet outside the courtroom, the trial record will be used – or abused – for shaping the collective memory of the peoples and nations involved and for providing an overall account of the wars themselves.
50
Justice for all, and how to achieve it
Original lecture delivered on 13 February 2013.
51
Chapter 3
Legal Process as a Tool to Rewrite History The war crimes trials at the ICTY produced a huge record of trial evidence. ICTY trials had several objectives, including bringing retribution and achieving deterrence, but they never sought to write history; every trial record produces at least two competing narratives, a prosecution narrative and a defence narrative or narratives, none of which may be accurate. Yet outside the courtroom, the trial record will be used – or abused – for shaping the collective memory of the peoples and nations involved and for providing an overall account of the wars themselves.
50
Justice for all, and how to achieve it
Original lecture delivered on 13 February 2013.
51
Chapter 9
The Adversarial System and the Art of Advocacy Is the adversarial legal system as good as we say it is? If it is, how should advocates be trained to do it? Are there some universal rules for advocates that should be followed?
142
Justice for all, and how to achieve it
Original lecture delivered on 5 March 2014.
143
Chapter 9
The Adversarial System and the Art of Advocacy Is the adversarial legal system as good as we say it is? If it is, how should advocates be trained to do it? Are there some universal rules for advocates that should be followed?
142
Justice for all, and how to achieve it
Original lecture delivered on 5 March 2014.
143
Chapter 15
Sex and the Law Reputations tumble; men once popular and famous but too powerful are condemned and imprisoned. Others fear their reputations will not long survive their deaths. Others will ‘get away with it’ as presumably they always have. How will all this be viewed in decades to come? Witch-hunt or confirmation that Mary Whitehouse was right and the sexual revolution is to blame? 1 If so, what should society have done that it didn’t? What should it do now apart from lock up aged offenders? And what about juries? Will they, not judges, ultimately determine how the law can be fair on sexual behaviour – assuming juries can ever discuss these things candidly?
242
Original lecture delivered on 2 March 2016.
243
Chapter 15
Sex and the Law Reputations tumble; men once popular and famous but too powerful are condemned and imprisoned. Others fear their reputations will not long survive their deaths. Others will ‘get away with it’ as presumably they always have. How will all this be viewed in decades to come? Witch-hunt or confirmation that Mary Whitehouse was right and the sexual revolution is to blame? 1 If so, what should society have done that it didn’t? What should it do now apart from lock up aged offenders? And what about juries? Will they, not judges, ultimately determine how the law can be fair on sexual behaviour – assuming juries can ever discuss these things candidly?
242
Original lecture delivered on 2 March 2016.
243
This chapter is rooted in questions I found interesting at various stages of my professional practice as I dealt with several different kinds of sex-related crimes. Developments over recent years – in particular the investigation, prosecution and public condemnation of historic sex offenders – have possibly made the questions more likely to generate interest. However liberal as a society we think we have become, sex and the detail of sex is largely beyond public and even private discussion. Intolerance of ideas can lead to intolerance of permissible action, of what people should otherwise be free to do. So we must ‘be bold’ – as Kenneth Williams used to say in Round the Horne.2 SEX IS FUNNY BECAUSE WE CAN’T SPEAK ABOUT IT SERIOUSLY
We cannot talk about the mechanics of sex seriously and we have to laugh about them, however dull they may be. Go to any theatre and hear the audience laugh at any sexual term especially if also used effectively as a swear word. It can wreck many performances and all because the audience knows no other way to react. When depiction is on a film people will generally sit in silence and in the dark, not giggling, at detailed scenes of sex or at sex words or at bad language. Perhaps it is the dark of the cinema that makes it less the embarrassing public ‘discussion’ of a theatre where people must be seen to laugh at what they cannot cope with; or perhaps the dark is like the dark of private and secret imagination. Since I mentioned the radio programme Round the Horne we should also remember that that programme, and many other shows of different types, used humour in a positive way to break down taboos and to move society and its moral standards. Fantasies Sex has much to do with fantasy. Let me try to make the same point about our inability to talk seriously about sex by a fantasy I have had, one in which a parliamentarian acknowledges his own indulgence in violent sexual fantasy in a parliamentary debate about an imagined drug to be introduced into the drinking water that could restrict us from crossing from the line of permitted and enjoyable fantasy to impermissible realisation of fantasy. After all, research shows that fantasy by both men and women includes
244
Justice for all, and how to achieve it
imagined violent or forceful sex.3 No parliamentarian could ever make such an acknowledgement. Talking about the realities of sex involves recognition of the risk, at a minimum, that fantasies stray beyond the boundary of what it is legally or culturally permissible to do and also that past actions of many men may have crossed that boundary – one that ebbs and flows over time.4 People cannot speak about sex because they may well harbour suspicions about their own pasts, about whether they have crossed lines that they have publicly to condemn in the strongest terms in others who do. They may also be inhibited because of what they know or strongly believe about the real behaviour of friends or work colleagues. And memory itself is degraded by the passage of time and the change in public mores. I recall a friend who worked on Jim’ll Fix It observing how Jimmy Savile would look at under-age girls and refer to ‘Mr Policeman’, thus revealing his interest and that he knew his interest was, or would be, against the law. At its time it was probably irrelevant, although by today’s standards it might be a most powerful piece of evidence in bringing a sex offender to justice. I was surprised last year to turn up a letter written to me in 1965 by a schoolteacher I knew who ran a music/drama group for school leavers and people just in or out of university. He was, I guess, about 40. He wrote of returning to school to work, observing that, although the teaching was ‘driving him mad’, he was ‘cultivating two gorgeous third formers – usual trick – let them do the seducing, then wham’. This letter reveals several surprising things. First, that a grammar school teacher had clearly been able – if his bragging was accurate – to seduce young girls and get away with it. Second, that he felt no fear in writing about intentions that would be the end of his career and possibly a route to the slamming of a prison door in today’s climate, but, third and fourth, that I was apparently not shocked at receiving such a letter and was able to forget it completely, although I don’t believe I saw the writer again. When I had calculated who it was from, I checked his name in case – 90 years old though he would be at least – he featured anywhere; he didn’t. Time changes morality, public and private, and with it our sensitivity and even our memory.
Chapter 15: Sex and the Law
245
This chapter is rooted in questions I found interesting at various stages of my professional practice as I dealt with several different kinds of sex-related crimes. Developments over recent years – in particular the investigation, prosecution and public condemnation of historic sex offenders – have possibly made the questions more likely to generate interest. However liberal as a society we think we have become, sex and the detail of sex is largely beyond public and even private discussion. Intolerance of ideas can lead to intolerance of permissible action, of what people should otherwise be free to do. So we must ‘be bold’ – as Kenneth Williams used to say in Round the Horne.2 SEX IS FUNNY BECAUSE WE CAN’T SPEAK ABOUT IT SERIOUSLY
We cannot talk about the mechanics of sex seriously and we have to laugh about them, however dull they may be. Go to any theatre and hear the audience laugh at any sexual term especially if also used effectively as a swear word. It can wreck many performances and all because the audience knows no other way to react. When depiction is on a film people will generally sit in silence and in the dark, not giggling, at detailed scenes of sex or at sex words or at bad language. Perhaps it is the dark of the cinema that makes it less the embarrassing public ‘discussion’ of a theatre where people must be seen to laugh at what they cannot cope with; or perhaps the dark is like the dark of private and secret imagination. Since I mentioned the radio programme Round the Horne we should also remember that that programme, and many other shows of different types, used humour in a positive way to break down taboos and to move society and its moral standards. Fantasies Sex has much to do with fantasy. Let me try to make the same point about our inability to talk seriously about sex by a fantasy I have had, one in which a parliamentarian acknowledges his own indulgence in violent sexual fantasy in a parliamentary debate about an imagined drug to be introduced into the drinking water that could restrict us from crossing from the line of permitted and enjoyable fantasy to impermissible realisation of fantasy. After all, research shows that fantasy by both men and women includes
244
Justice for all, and how to achieve it
imagined violent or forceful sex.3 No parliamentarian could ever make such an acknowledgement. Talking about the realities of sex involves recognition of the risk, at a minimum, that fantasies stray beyond the boundary of what it is legally or culturally permissible to do and also that past actions of many men may have crossed that boundary – one that ebbs and flows over time.4 People cannot speak about sex because they may well harbour suspicions about their own pasts, about whether they have crossed lines that they have publicly to condemn in the strongest terms in others who do. They may also be inhibited because of what they know or strongly believe about the real behaviour of friends or work colleagues. And memory itself is degraded by the passage of time and the change in public mores. I recall a friend who worked on Jim’ll Fix It observing how Jimmy Savile would look at under-age girls and refer to ‘Mr Policeman’, thus revealing his interest and that he knew his interest was, or would be, against the law. At its time it was probably irrelevant, although by today’s standards it might be a most powerful piece of evidence in bringing a sex offender to justice. I was surprised last year to turn up a letter written to me in 1965 by a schoolteacher I knew who ran a music/drama group for school leavers and people just in or out of university. He was, I guess, about 40. He wrote of returning to school to work, observing that, although the teaching was ‘driving him mad’, he was ‘cultivating two gorgeous third formers – usual trick – let them do the seducing, then wham’. This letter reveals several surprising things. First, that a grammar school teacher had clearly been able – if his bragging was accurate – to seduce young girls and get away with it. Second, that he felt no fear in writing about intentions that would be the end of his career and possibly a route to the slamming of a prison door in today’s climate, but, third and fourth, that I was apparently not shocked at receiving such a letter and was able to forget it completely, although I don’t believe I saw the writer again. When I had calculated who it was from, I checked his name in case – 90 years old though he would be at least – he featured anywhere; he didn’t. Time changes morality, public and private, and with it our sensitivity and even our memory.
Chapter 15: Sex and the Law
245
UN Commission on Human Rights (cont.) and crimes against Comfort Women 117–18 listing of human rights violations in Burma 160–1 United Nations (UN) Human Rights Council Fact Finding Mission on Gaza Conflict (Goldstone, 2009) 204–5, 229 listing of human rights violations in Burma 160–1 Report on 2014 Gaza Conflict (Davis) 229 Report on North Korean Human Rights Abuses 164–6, 167 Report on violations of international law resulting from Israeli attacks on Gaza humanitarian flotilla 229, 235 United Nations (UN) Relief and Works Agency, Gaza Strip school 212 United States of America (US) and Armenian massacres (1915) 21 atomic bombing of Japan 15, 16 Constitution and the law 130, 132, 134, 136, 140 court cases: Brown v Board of Education (1953) 132; Nicaragua v United States 74–5; Roe v Wade (1973) 132; United States v Mitchell (1965) 103 and Gaddafi 18 and Hamas-led Palestinian Authority 204 and ICC 12–13 Kent State University anti-war protest 232 Lieber Code (1863) 20, 70 and Nuremberg trials 21 and prosecution of Charles Taylor 17 Voting Rights Act (1965) 132 see also Russell Tribunal on Vietnam Universal Declaration on Human Rights 233, 283, 286
W Wald, Patricia 55–6 Wallace, William 53 war crimes, as defined in Article 8 of Rome Statute (ICC) 161 Whitehouse, Mary 243, 248, 253, 254 Wilde, Oscar 3, 52, 252 Wilhelm II, German Emperor 14–15, 71, 72 Wilhelmina, Queen of the Netherlands 14 Williams, Kenneth 244 Wilson, Woodrow 14, 100 Winston, Clive 172 Winter, Colonel Ofer 220 World War I attitude toward Kaiser 71, 72 Treaty of Versailles and war crimes 14–15 World War II atomic bombing of Japan 15, 16 Dresden attacks 15, 16 war crimes tribunals 15–16 see also Nuremberg trials; Tokyo trials (after WWII) XYZ Ya’alon, Moshe 220 Yosef, Ovadia, Rabbi 220 Yugoslavia historical background 34–5 see also International Criminal Tribunal for the former Yugoslavia (ICTY); Milošević, Slobodan, ICTY trial of; Srebrenica genocide and trials Zionist movement 201, 202 Zwaan, Ton 43–4, 48
V Vietnam War and John F. Kennedy 287 Kent State University anti-war protest 232 see also Russell Tribunal on Vietnam Villepin, Dominique de 18 Vinter and others v The United Kingdom 263 Voting Rights Act (US, 1965) 132
380
Justice for all, and how to achieve it