Rather His Own Man

by Geoffrey Robertson

  Delivering on the Nuremberg legacy in Africa after a civil war had other problems. As the Nuremberg prosecutor had said, ‘We succeeded because of the Teutonic habit of writing everything down.’ But the warring factions in Sierra Leone had kept no incriminating records, and guilt had to be proved by laborious excavations of clues from mass graves and by testimony from informants who needed protection – some had to be given new identities and a new life in other countries. These were just some of the novel questions that my appeal court had to consider. And because ‘fair trial’ concepts had moved on since Nuremberg, we had to make improvements. Under the Nuremberg model, the prosecutor was an ‘organ’ of the court, along with the judges and the registrar, but there was no provision for the defence. I had always felt that this was unfair, so I instituted an independent defence office, which could ensure that all prisoners were competently – sometimes outstandingly – represented, and this initiative was later adopted by the International Criminal Court.

  Our first task was to build a court. I approached Richard Rogers. As a believer in international justice he agreed, without taking a fee, to design a world-class structure for Sierra Leone. But all financial decisions were made by a UN committee in New York, and when his tender came in – at only $100,000 more than the firm which had built a crown court at Wolverhampton – I could not convince the bean-counters to leave Sierra Leone with an architectural legacy. Certainly the Americans (the Bush regime) were opposed to any form of legacy – they wanted defendants convicted as quickly and as cheaply as possible. I had to explain that justice need not be exquisite but must not be rough: if they failed to provide enough money to pay for the trials, and particularly for the defence office, we would pull up stumps and depart. In the end the funds were provided, a serviceable court was built and the trials proceeded as fairly as possible.

  This was in no small measure due to Robin Vincent, the epitome of an honest and imaginative administrator. He was an English cricket obsessive, and we spent our spare time happily sledging each other. His calmness and cunning came through in dealing with the UN bureaucracy and in overcoming all the frustrations of getting the court up and running. At one point he sent a list of essential demands to Kofi Annan, with a threat to resign if they were not met. ‘You shouldn’t resign, old chap,’ said a visiting stuffed-shirt from the British Foreign Office. ‘You won’t get your K.’ (FO-speak for knighthood.)

  ‘I don’t give a damn about my K,’ replied Robin. ‘I only care about my court.’

  Annan came through with the resources, and the UK did come through with his K before Sir Robin died of cancer in 2011 shortly after his term of duty had ended.2

  In 2004 I took the judges to London’s Middle Temple for a week to settle the ‘Rules of Evidence and Procedure’ and our prosecutor indicted Charles Taylor. The court was in business, and soon in session. But did international law even allow us to indict a sitting head of state? A week of Appeal Court hearings was scheduled to settle this and other unsettled questions, such as whether it was an international crime to recruit child soldiers and whether an amnesty could be valid for a crime against humanity. Taylor, who remained safe in Liberia, sent a team of lawyers to argue that wherever he was he was beyond our jurisdiction, because he possessed the immunity traditionally given to heads of states. The Appeal Court rejected this argument and decided that credible allegations of crimes against humanity might be tried in an international court irrespective of any claims of immunity, which were binding only on domestic courts.

  In another ruling, we rejected the amnesty that the defendants had all been given by a peace agreement signed at Lomé in Togo (where peace negotiations had taken place in 1999). This took international law a step further than had been reached by the Pinochet precedent, which had invalidated only the local amnesties that Pinochet had given to himself. Our decision invalidated all amnesties given for crimes against humanity. Amnesty International applauded the judgment and I suggested that it should change its name – to ‘No Amnesty International’. In this case I had the sensation that must be felt by many appellate judges, of rejecting the very legal arguments I had once formally made when a barrister. The submissions I had made to uphold the validity of the amnesty in order to save the lives of the Muslimeen in Trinidad did not strike me as correct when I heard them made for Charles Taylor.

  Our most ground-breaking judgment was to declare that it was a crime to recruit child soldiers. This was the first prosecution of its kind, anywhere in the world, and it was appropriate to initiate it in Sierra Leone, where over ten thousand children under the age of fifteen had been enlisted to serve in the armies of the warring factions. Many were killed or wounded and others were forced by guns or induced by drugs to kill and maim their victims, including members of their own community and even their own families. For survivors the consequences were traumatic – they suffered reprisals from the villages they had been ordered to attack and exhibited behavioural problems and psychological difficulties.

  The evidence before the court about child recruitment was abhorrent, but abhorrence does not create an international law crime. The principle of legality – the rule against retrospective law-making – requires that a defendant, at the time of committing the acts alleged to amount to an offence, must be in a position to know, or at least readily to establish, that those acts would entail punishment, no matter how grotesque they would appear to most people. That stage was certainly reached by the time the convention establishing the International Criminal Court came into force in 2002, with its prohibition on child recruitment, but in my opinion it had not been reached by 1996, the year that Samuel Hinga Norman was charged with recruiting children to his force, which was defending the government, because at that point no country had made child recruitment an offence. Our court split on this question (my opinion was endorsed by later cases and textbook writers), but the difference did not matter: we were at last, and to this extent unanimously, declaring that henceforth forcing children to fight was an international crime.

  There were more novel decisions: how to deal with a ‘Truth Commission’ which wanted to interrogate our defendants before we could put them on trial; whether to order human rights researchers and journalists to give evidence for the prosecution and to disclose their sources – my decisions on those issues have also found their way into textbooks. At one point three defendants from the RUF objected to my hearing their appeals because I had previously written critically about this faction (taking my facts from Kofi Annan’s reports to the Security Council). I was happy to stand down from their cases because their defence seemed to be that the RUF had not committed the crimes that Annan and various commissions and hence my book had imputed to it, so they might perceive me as biased. But they went further and tried to remove me permanently from the court – in which endeavour they failed. At trial, of course, these defendants admitted all the RUF atrocities – their unsuccessful defence was that they personally were not involved. They might have done better had I heard their appeals.

  Over the five years I was a member of the court, my colleagues held in favour of the prosecution in every appeal, and I was the only judge to rule, on several occasions, for the defence. I would probably have upheld the appeal of Sam Hinga Norman (and of his co-defendants) had he not died before the verdict. His co-defendants were convicted on the same facts, by two trial judges against one. I had left the court by the time of their appeal, but it strikes me as a matter of logic that if one of three judges thinks a defendant innocent, there must be a reasonable doubt about his guilt.

  Eventually Charles Taylor was surrendered to the court – he had fled Liberia for a bolt-hole in Nigeria, but had run out of friends, and doubtless money. His trial in 2010 received more publicity than any other when Naomi Campbell and then Mia Farrow stepped into the witness box to tell how Taylor had given Campbell ‘blood diamonds’ from Sierra Leone after a dinner party in South Africa hosted by Nelson Mandela. Taylor was convicted of eleven charges of a
iding and abetting crimes against humanity ranging from terrorism, rape and murder of civilians to recruiting child soldiers and sex slaves. The evidence set out in blood-curdling detail the crimes of mass-murdering and mass-mutilating he supported, although from his presidential palace in Liberia he had no direct involvement with the atrocities. He knew about them, however, at least from reading newspapers, and he supported the perpetrators with money and munitions. His conviction should serve as a warning to other political or military leaders who send assistance to brutal factions in a civil war, with knowledge that they will use that assistance to commit crimes against humanity.

  Taylor’s appeal was given short shrift, and in May 2012 he was sentenced to fifty years’ imprisonment, which he is serving in Britain. I had left the Appeal Court by this time, but I certainly would not have upheld the length of his sentence – as a man already of sixty-nine, he will die well before his release date. Sentencing convicts to more-than-life terms is a cruel American habit which is antipathetic to sensible penology – even the likes of Charles Taylor should be sentenced to a prison, not a mortuary.

  I served for five years on the UN War Crimes Court and it was not an easy ride. I spent many hours looking down over the endless sands of the Sahara before smearing myself with DEET as we touched down. Petty theft was a daily problem – I had my robes stolen (much good that must have done the thief) and on one occasion my suit was neatly extracted from its carrier, so I had to appear at the court’s opening in Robin’s ill-fitting clothes. However, I do have pleasant memories – of the zest for life of the limbless victims, of the court coffee shop, where I could mingle with young lawyers on prosecution and defence teams, and court staff and NGO visitors (quite a few from Australia) to discuss the way forward for the global justice movement. And I will never forget the friendship of Robin Vincent.

  Every time we visited Freetown there was some improvement – a lick of paint on the customs office, a new newspaper on the streets, a new asphalt road from the landing pad. It was heartening to see how democracy had begun to take hold among a people who had always enjoyed peace until army coups had replaced the rule of law and rivalries had been whipped up by leaders greedy for power and for diamonds. By putting those leaders on public trial, the court contributed to the peace, and gave some meaning to the slogan ‘No Peace without Justice’.

  Sierra Leone also afforded an insight into the practicalities of international justice. It is one thing to write academic treatises on the subject; on the ground, the complexities and challenges are extremely arduous. We were unable to overcome the costs and the delays that have dogged other international courts, but ours was generally hailed as a success. I remain convinced that a war crimes court is most effective if it sits in the country recently torn apart by the war: it becomes one of the institutions that can help put it together again.

  In 2010 I was invited to Nuremberg’s iconic courtroom by the German Foreign Ministry, which had decided to make it more than a tourist attraction. They wanted to fund a centre to promote ‘the Nuremberg legacy’ – putting tyrants on trial for crimes against their own and other people. I sat in my judicial robes on the very bench where the judges had glared at Goering and Ribbentrop, and where Spencer Tracy had been pictured in the movie Judgment at Nuremberg. I was full of ideas of how this historic court could be used to bring the legacy alive: we could televise a trial of my relative, the Kaiser, for invading Belgium or ordering unrestricted submarine warfare, or we could arraign some long-dead German diplomats and Turkish politicians for connivance with the Armenian genocide. The dour foreign office officials blanched, more noticeably when I suggested some modern trials, of George W. Bush for invading Iraq or Vladimir Putin for aggression in Ukraine. They took fright, and decided that it should be turned into just another un-embarrassing ‘academy’ for academics. I was invited to speak at the opening, where I made one last desperate suggestion – to stage a trial of Sepp Blatter for the corruption of FIFA. It was no use. The historic court at Nuremberg will not be the stage for anything controversial anytime soon.

  Everyone who hopes for peace and justice in the world pins their faith on the United Nations. The organisation is the best we can do, although it is never good enough, thanks to its structural weaknesses, most notably the Great Powers’ veto in the Security Council, which gives Russia and China, and sometimes America, the ability to dishonour their proclaimed ‘responsibility to protect’ victims of crimes against humanity, and to threaten to veto progress on other initiatives for equality, justice and climate change.

  I first entered the UN building in New York at the request of its Staff Association. Its members, most of whom had made personal sacrifices to work for the organisation, were not being treated fairly. The internal disciplinary and employment law procedures had not been updated since 1947, management was entitled to behave as it liked, and nepotism – the abiding problem of an organisation with its officials appointed by governments of member states – was rife. I chaired a commission which recommended the appointment of a full-time independent judiciary to deal with all internal problems and to stand between management and staff in order to resolve the frequent internal disputes that were damaging the UN’s work. In 2008 these recommendations were finally implemented and the Staff Association elected me as their ‘distinguished jurist’ member to sit on the new Internal Dispute Tribunal, which would supervise the new system and nominate the judges, chaired by Kate O’Regan, formerly of the South African constitutional court.

  Our first task was how to appoint them in a way that would avoid the drawbacks of state nomination. We decided to advertise for candidates internationally in The Economist and Le Monde. They had to have been judges for a decade or so, and to send us examples of their work. This produced about 400 applications. We called the best (on paper) thirty candidates to The Hague, not only for an interview but also (to their horror) a three-hour examination, in which they had to produce a judgment on given facts, which would show their juristic ability. It was fascinating to see how the competitive examination, that mainstay of the old English civil service and the merit-based mandarin bureaucracy of China, really sorted the sheep from the goats. Some of these lawyers, although long-time judges in their own countries, seemed unable to write with any clarity. The examples they sent us must have been written by their clerks or their associates.

  The testing produced an excellent set of judges (one from New South Wales, Michael Adams, shook up the UN by imposing a set of rigid fairness standards). The longest exam paper was written by Michael Kirby, newly retired from writing even lengthier judgments for the High Court. We recommended him to the General Assembly as an appeal judge and hoped he would preside over the appeal process – he was clearly better qualified than the other nominees – but regrettably (and disgracefully) the Howard government did not support him and he was beaten in the vote. John Howard’s government at the time took a curmudgeonly attitude to the UN because of some criticisms over treatment of Aboriginals and refugees, and this short-sighted attitude was damaging to Australia’s reputation for supporting human rights. Kevin Rudd’s successful campaign to put Australia on the Security Council restored some credit. Notwithstanding Manus and Nauru, it must be said that Julie Bishop has been generally supportive of UN initiatives, and Gillian Triggs has won international accolades, if not always local approval, for her insistence when she was president of the Australian Human Rights Commission that the country should uphold international human rights standards.

  The most important safeguard for human rights, both in national and international courts, is access to justice delivered by judges who are both independent of government and impartial towards the parties. By 2017, when I was invited to deliver a keynote speech on the subject at the International Bar Association annual conference back in Sydney, I had become something of an expert. I had successfully defended the chief justice of Trinidad when its government tried to remove him, the chief justice of Sri Lanka when her government impeached h
er for a decision in favour of the Tamils, and even a judge who had been unfairly disciplined for drinking. I have written extensively on the problems of political appointments to the bench, and on the current danger of populist movements and governments seeking dependent judges – legal lickspittles who will do their bidding. From Poland (where the government is trying to sack all Supreme Court judges and replace them with cronies) to Venezuela (where hard-line judges do the government’s dirty work by ordering the arrest of political opponents) to America (where Donald Trump has promised to appoint only judges who share the ‘values’ of his base) to Britain, where tabloids condemn honest judges as ‘enemies of the people’, the critical importance of judicial independence is not recognised. It is ironic that this long-time critic of judges should be their defender, but they are not good at defending themselves and the times call for an explanation of why their independence is essential to democracy, no matter how unpopular their decisions.

  As a former UN appeal judge I sometimes receive requests to investigate and adjudicate quasi-judicial controversies that the UN and its member states lack the political courage to undertake. In 2009 the Washington-based Boroumand Foundation (‘Human Rights and Democracy for Iran’) asked me to report on a massacre of which I had not previously been aware: the mass killing of political prisoners and atheists in Iran in 1988. I conducted, with the help of Jen Robinson, interviews with survivors and witnesses in the US and in European cities, examined the Iranian press at the time, and found that these killings constituted the worst crime against humanity committed against prisoners since World War II, comparable in wickedness to the killings in Srebrenica and to the death marches of Australian and American prisoners by the Japanese.