Rather His Own Man

by Geoffrey Robertson

  Armenia, a county of three million people without oil wealth like Azerbaijan, or political importance like Turkey, could not survive without the help of its diaspora, concentrated in California, where I find myself every April commemorating the genocide (they need no reminding, only the consolation of knowing that others share their sorrows). I have grown to like Armenians (even if the most famous of their race is Kim Kardashian) and I could vote for Gladys Berejiklian, although I might draw the line at Joe Hockey.

  My wife was not too bothered by my human rights work – it kept me out of the house. Sometimes, however, she was heard to express the wish that they would hang my clients quickly so my services would no longer be needed. She learnt her lesson, I think, early in our marriage when she did cut up rough about my devoting a weekend of fathering time to helping the only opposition MP in the Parliament of Mauritius, Navin Ramgoolam, under attack from right-wing enemies. Some months later, tickets to Mauritius dropped through the post with a note from Navin saying that he had won the election, and indeed his party had won every seat in the house. Could I come to stay at a beach hotel to advise his government on law reform, and bring the family?

  So such family holidays – they were holidays for the family, not me, in that delightful island over the years of Navin’s prime ministership – made up for my sojourns in less serene places. I was not allowed to take the kids to Africa after a trip to the Gambia, when I led them, under the tutelage of a dreadlocked Rasta guide, to a mysterious, gaseous lake to pat some rather large crocodiles. They were soporific from the gas, but with jaws large enough to swallow Georgie should they decide to yawn. I had faith in the magic of the lake, which had never experienced a fatality, but Kathy decided that working holidays should thereafter be confined to Mauritius and the Caribbean.

  This is one consequence of acting for oppositionists: some of them eventually come to power and summon you back to help; this time you are accorded VIP treatment, sometimes from the same police who monitored you when you were against the government. Certainly, my children liked the armed police who escorted them when I came to advise the government of Trinidad – the men took Jules and Georgie to a funfair, and the kids took great delight in the fact that their guards were too frightened to join them on the ghost train.

  My literary partnership with Kathy seemed to work – I would take the first draft of her novels with me to a death row, or to a Holiday Inn in Florida near Jules’s tennis training camp, to wrestle their plots into some sort of shape. Kathy in return would take my drafts to the hairdressers and try to add some jokes, although she had to admit defeat with Crimes Against Humanity. We were sometimes at cross-purposes. ‘You write here, “She felt she was in a Rousseau-like state of nature.” Don’t you know that Hobbes was the state of nature, Rousseau was the social contract?’

  ‘But I was thinking of the painter, who depicted women in those jungles.’

  And so on, into the night.

  18

  The World’s Fight

  I have sometimes thought that the stars aligned when I was born – at the very hour when the judges at Nuremberg were pronouncing a verdict that created international criminal law. I first noticed the coincidence when I began work on my book Crimes Against Humanity, more than half a century later. I had decided to write a book about the prospects of enforcing human rights law. The time seemed right: the European Court of Human Rights was expanding its jurisdiction, there were some good judgments from the Inter-American Human Rights Court that served Latin America, and the Privy Council was developing a human rights jurisprudence for some countries of the Commonwealth. National courts had delivered important judgments on torture and on free speech; there were cases stretching back centuries on the law of war (‘international humanitarian law’ as it is confusingly called); the UN had set up war crimes courts for the nations that had emerged from what had been Yugoslavia; a court had been instituted in Tanzania to prosecute the perpetrators of the Rwandan genocide. There had even been a conference in 1998 to establish an International Criminal Court. My book attempted to weave together these fin de siècle developments as indicative of a historic shift, from appeasement to justice, in international relations. No longer would tyrants, I posited, be allowed to leave the bloody stage with amnesties in their back pocket and their Swiss bank accounts intact: they could be indicted by international prosecutors, and tried in international courts.

  The problem with prosecuting tyrants, however, is that they are usually heads of states, who have immunity from prosecution. I argued in the book that the key to puncturing the ‘state sovereignty’ that gave them immunity would be to charge them with a ‘crime against humanity’. The worst of such crimes was genocide, which the world had a duty, under the UN Genocide Convention, to punish. But systematic and widespread killing, torture and rape would also count as international crimes, against which pardons and amnesties granted under local law could not shield rulers. Crimes Against Humanity: The Struggle for Global Justice was both an exposition of international human rights law as it had developed thus far and a clarion call for a binding obligation on all states, including America, to submit to international justice. The book’s advocacy of a global justice movement was described by John Bolton, George Bush’s lawyer and a future UN ambassador, as ‘a threat to American sovereignty’.

  It was published on 24 March 1999, the red-letter day on which the House of Lords finally ordered retired Chilean dictator General Augusto Pinochet to be extradited to Spain for trial as a torturer, and the day that NATO bombed Serbia to stop its ethnic cleansing in Kosovo. The age of enforcement had begun, at the fag-end of a century in which more than 150 million lives had been lost in war and genocide.

  The first test of the main thesis in my book had come with the arrest in London of General Pinochet. I had written to him, without answer, of course, as an Amnesty member, back in 1973 when his coup overthrew the democratically elected Salvador Allende. Pinochet had murdered Allende’s supporters (including, it is now believed, Pablo Neruda), ‘disappeared’ four thousand dissidents, and set up torture chambers to break opposition to his military rule and spread terror. So confident was he that no law could catch up with him that he allowed his state torture to become public knowledge. It generally involved the infliction of pain by electric shocks, accompanied in many cases by degradation through rape and bestiality, often in front of family members, who themselves were forced to confess to stop the agonies of a wife or daughter.

  Pinochet retired in 1998, festooned with amnesties he had arranged for himself. And protected, so he thought, by his cloak of immunity, he decided to come to London – to have his back treated at a clinic in Harley Street. He had been given red-carpet treatment on previous visits (the Ministry of Defence was hopeful Chile would buy British arms) and had openly supped around town. My friend Ruthie Rogers (whose husband, Richard, one of the world’s leading architects, had designed the court in Strasbourg) ran a fashionable restaurant and was so horrified at the sight of his name on the gold card print-out that she donated the amount he had paid for his meal to Amnesty International. On his arrival at Heathrow he was, as usual, given VIP treatment and the next day it was reported that the ageing mass-murderer ‘took tea’ (I am reliably informed it was whisky) with his good friend Lady Thatcher. He then attended his private clinic, from where his presence in London was leaked to the Guardian.

  That is when Baltasar Garzón, Spain’s judge in charge of terrorist investigations who had for years been gathering evidence of Pinochet’s guilt, asked Scotland Yard to arrest him for extradition to Spain under a European Convention that facilitated the processing of criminal suspects wanted for trial in member states. Obedient to European law, London’s anti-terrorist squad pulled off one of its finest operations, surrounding the bed of the recumbent torturer just a few hours before he was scheduled to fly home. His arrest produced an international sensation and was immediately challenged in court. At the initial stage, three judges (and they were good
English lawyers) ordered his release: they could not understand how an allegation of torture, which could be made against so many state visitors to London, could puncture Pinochet’s immunity. Garzón appealed to the House of Lords, and both Amnesty and Human Rights Watch entered the proceedings to explain how those who committed crimes against humanity should have no hiding place.

  I was briefed by Human Rights Watch, which gave me an opportunity to put some passages in my new book into a legal submission, to the effect that immunities should apply to heads of state only in relation to their exercise of legitimate state functions, and by no stretch of the imagination could widespread and systematic torture – a crime against humanity in international law – be regarded as a legitimate state function.

  The verdict from the House of Lords, televised live, had all the thrill of a football penalty shootout, as the five Law Lords rose in turn to announce their decision. The first two put their balls firmly through our goalposts: it was 0–2 for the torture team. Then one, and another, scored for our team – the international justice game stood at 2–2. That was when Lord Hoffmann stood to declare that Pinochet had no immunity – the torturer must go to trial. There was pandemonium in the square outside, full of his victims who had come to London in the hope of seeing international justice done: for the first time since Nuremberg, it was.

  But it was also British justice, which is adamant that no judge should be perceived to be affected by any private interest. Lord Hoffmann had helped, free of charge, a charitable trust set up by Amnesty, which had made itself a party to the case, so he was disqualified. The judgment was set aside and a new panel of Law Lords had to be found, none of whom must have any connection with human rights. They were, in the main, commercial lawyers whose experience was largely concerned with interpreting contracts. They focused on the Torture Convention – one of those unenforced and hitherto unenforceable documents that diplomats had signed without dreaming it would have any effect. But it had imposed a duty on governments ‘to try or to extradite for trial’ credibly suspected torturers, and our literal-minded Law Lords took those words to mean what they said. The final score in the return match was 6–1 to human rights.1

  Pinochet spent eighteen months under house arrest (well, mansion arrest) in England before, with a mercy the general had never shown his victims, Home Secretary Jack Straw allowed him to return home due to medical evidence that he was unfit for trial. Once back in Chile he had the most amazing recovery since Lazarus, but spent his last years tormented by legal actions and prosecutions for his newly discovered corruption. The Pinochet precedent entered international law – and was used to further the prosecutions of Slobodan Milosevic, Charles Taylor, Radovan Karadžić, Ratko Mladić, Hissène Habré and other mass-murdering leaders and generals.

  In London, Pinochet’s case was for several months the main political controversy, and I went around TV studios arguing that crimes against humanity could not admit of forgiveness. My opponents – usually Norman Lamont, once Mrs Thatcher’s chancellor of the Exchequer – had to acknowledge the evidence of the viciousness of Pinochet’s torture regime; he claimed that retribution should be left to history (which depends, as Richard Nixon pointed out, on who writes it) or to God (in an increasingly secular society, belief in a torture camp named ‘Hell’ was no longer universal). The loudest ploy of the Pinoshits was to accuse us of ‘destabilising Chile’s fragile democracy’. This was soon proved to be nonsense – Michelle Bachelet, whose father (an air force general loyal to Allende) had been killed by Pinochet, was elected president. The country settled down and showed no lingering fondness for its dictator, especially when he was revealed to have stolen a lot of its money. The Blair government throughout played a straight bat – ‘We must let the law take its course.’ The course it took was a matter of some bewilderment to Australia’s prime minister. ‘I was not taught that this sort of thing could happen when I was at law school,’ remarked a bemused John Howard.

  It is one thing to formulate a theory about international justice, and another to put it into practice. That real challenge came in 2002, when I was invited by the United Nations to become an appeal judge at its latest war crimes court, in war-torn Sierra Leone. At this time, Sierra Leone (named by fifteenth-century Portuguese navigators after the lion-shaped mountains they could see from its shores) was the poorest country in the world. Many of its people had been captured by early slave traders, but the capital, Freetown, had been established by British abolitionists as a haven for the slaves who had been freed, and for the American slaves who had fought for Britain during the war of independence. In due course the country’s mineral wealth – notably its diamonds – were despoiled by Cecil Rhodes and the De Beers corporation, and until the 1960s it was run by colonial administrators. Graham Greene, stationed there during World War II, gives a memorable account of the country in The Heart of the Matter. It was a peaceful place until it achieved independence in 1961, when it was disrupted by army coups and became for a while the regulation one-party state. The five years from 1996 saw it dissolve into the most brutal civil war between rival armed factions, fighting each other as well as a government returned after a UN-sponsored democratic election.

  One such faction, the Revolutionary United Front (RUF), was led by a pathological killer named Foday Sankoh, and backed by Charles Taylor (president of neighbouring Liberia). The RUF devised a new entry in the human rights chamber of horrors called ‘chopping’. The slogan of the UN-brokered election taking place at the time was that the people had ‘power in their hands’, so those who had voted in the election were asked in which hand they had held their pen, and that hand was then chopped off. Mutilation worked as a means of terrifying the population, so the group devised more devilish tortures such as lopping off legs as well as arms, sewing up vaginas with fishing lines, and padlocking mouths. It recruited children, trained and armed them with AK47s, and had them execute village chiefs in the main square. It attacked Freetown in an operation called ‘No Living Thing’, which lived down to its name.

  My appointment as a UN appeal judge was welcomed by the high commissioner for Sierra Leone, who assured me that it would not take up too much of my time – just an occasional appeal in a few years’ time after the trials had finished. Of course it did not work out that way: my fellow judges elected me as the court’s first president and I had to be on hand regularly for the difficult work of getting the court up and running, interspersed with visits to the UN in New York to report progress and ask for more funds in order to progress further. But I made the time; my duties in Sierra Leone might disrupt my practice but I thought that duty had, in some indefinable way, called.

  I arrived in Freetown in 2002 to a city that bore little resemblance to Graham Greene’s description – it was full of burnt-out buildings and the ravages left by Operation No Living Thing. It was a dangerous, unpleasant place – some visitors, like Tony Blair, simply stayed at the airport, made a speech and returned home on the next plane. To enter the city involved a lengthy ferry trip over a long stretch of water or else a hair-raising flight in one of the old Ukrainian helicopters used by the UN, with young Ukrainian pilots. Two of them crashed while I was there, losing more than twenty lives on each occasion.

  To provide justice for the victims of the atrocities, the special court was to be comprised of three institutions – the registry, the office of the prosecutor, and two chambers for trials and appeals. I presided over the Appeal Court. We had an American prosecutor, David Crane, a British registrar, Robin Vincent, and my fellow judges – five of them – a mixed bag ranging from a fine and upstanding Nigerian jurist to a local judge who drove Robin mad by demanding employment for his relatives and provision of court cars to take his wife shopping. Some had the flaws of being UN appointees nominated by member states, rather than being meritocratically selected.

  The war had ended in an uneasy peace and we were guarded around the clock by a contingent of UN ‘Blue Helmets’, alert for threats from Charles Tay
lor and from factions which had not yet laid down their arms. There was a more immediate threat, too: as I was ushered into the decaying ‘VIP room’ at the airport on my arrival I noticed the first malarial mosquito. Almost every person at the court went down at some point with this recurring disease, the carriers of which I kept at bay by a foul-smelling repellent called DEET (diethyltoluamide). I succumbed on one occasion, and tried the remedy I remembered from my Biggles books, namely quinine, immediately sozzling myself in gin and tonic (only later was I reminded that quinine was in the tonic, not the gin). Fortunately Robin had obtained some of the mysterious herbal pills which the Vietcong had developed to cure their malaria, and it cured mine – nobody knew how.

  The war had taken 75,000 lives and left many more in various states of mutilation – our court sponsored a disabled football team, all members on roller-boards without arms or legs or either. The members of the children’s choir who sang at our inauguration had all been blinded in the war. Survivors were everywhere, as were those who had mutilated them. The only persons we could put on trial were those perpetrators who ‘bore most responsibility’ for the atrocities. A dozen of the faction leaders were rounded up and put in our prison, including Chief Samuel Hinga Norman, whose militia, the Civil Defence Forces, had actually fought for, and saved, the elected government. The American prosecutor decided to charge him with recruiting child soldiers. Norman was a respected figure in the community and had been made Home Affairs minister in the post-war government – he was arrested on the way to a cabinet meeting, and when he reached the prison the guards saluted. This was a reflection of our biggest challenge – we were the first international court to sit in the very place where the crimes had been committed at a time when many of the perpetrators were still at large. The judges for atrocities in the former Yugoslavia sat in safety at The Hague, and genocidaires in Rwanda were on trial in Arusha, in peaceful Tanzania. But we wanted to let victims see justice being done on those most responsible for their sufferings. When Charles Taylor was apprehended, however, the UN deemed it too dangerous to try him in Freetown – the court moved to the safety of The Hague.