Can extra judicial killing ever be just?

The next meeting of the London Legal Salon will be on Monday the 12th of December 2011 at 1930. We have changed the venue this time around. We will now be hosted by the Hoop and Grapes on Farringdon Street (http://www.thehoopandgrapes.co.uk/Menu.htm). Attendance is free as always.

Moral philosopher Piers Benn will introduce a discussion on the moral and legal questions behind extra judicial killing. An introductory blurb is below. Readings can be obtained by emailing londonlegalsalon@gmail.com.
 
Look forward to seeing you on the 12th,

The London Legal Salon

CAN EXTRA JUDICIAL KILLING EVER BE JUST?

Following the capture of the Nazi leadership after the Second World War Harry Truman, the then president of the United States, insisted that they should stand trial. He said their summary execution ‘would not sit easily on the American conscience or be remembered by our children with pride…the only course is to determine the innocence or guilt of the accused after a hearing as dispassionate as the times will permit and upon a record that will leave our reasons and motives clear”.

In contrast, following the killing of Osama Bin Laden in May, Barak Obama proclaimed to the world that ‘justice had been done’. But had it? The White House justified the killing by pointing out that the United States were at war with Al-Qaeda and Bin Laden was a military target. Others argued variously that trying Bin Laden would be either impossible or undesirable. But opinion was divided. Many, including Human Rights lawyer Geoffrey Robertson QC, claimed that Bin Laden was entitled to due process and that a trial would have allowed for his ‘de-mystification’ in the dock.

Bin Laden is just one of many suspected members of Al-Qaeda to have been killed by the United States authorities through targeted assassinations without any judicial sanction. Similar tactics have also been employed by the Israeli government in targeting suspected terrorists in Palestine. These ‘extra judicial’ killings raise important questions about the role of International Law in regulating modern conflicts and international anti-terrorism. Is it possible to try suspected international terrorists and when, if ever, should we want to? Since 1949, the Geneva Convention has sought to set the minimum standards for a state’s behaviour in the course of war. But at a time where wars are fought not just between states, but between states and amorphous and elusive organisations like Al Qaeda, have the old rules of war become out-dated?

What are Public Inquries For?

 

At 1930 on Monday the 24th of October 2011 Adam Burgess will introduce a discussion on Public Inquiries at the Perseverance, on Lamb's Conduit Street in Holborn (http://www.the-perseverance.moonfruit.com/)

The last 20 years have witnessed the meteoric rise of the Public Inquiry. 30 were ordered by British governments between 1990 and 2009. Whilst this sounds unremarkable, it was double the number that had been ordered throughout the rest of the 20th Century.

Their rise has been controversial. The Inquiries Act 2005 placed greater power in the hands of ministers to control the parameters of Inquiries, as well as enabling them to limit access to their findings. This raised concerns that the Act would lead to Inquiries becoming less transparent and less effective in ensuring accountability.

Others have suggested that Inquiries have become overburdened. At the beginning of the 20th Century, the motivation behind the ordering of an Inquiry was to guarantee independence where issues were raised as to the conduct of the establishment. Examples include the ad-hoc committee of Inquiry established in 1912 to investigate the Marconi Scandal, in which government ministers were accused of insider trading in an American communications company.

However, since the 1960s, Inquiries have increasingly addressed broader concerns around regulating risks to the public. This is illustrated by the enormous expansion of Inquiries into the healthcare and childcare sectors. The Bristol Inquiry of 1998 was described as the ‘widest ranging investigation into medical standards since the founding of the NHS’ and the Laming Inquiry had a significant impact on child protection policy following the murder of Victoria Climbie.

What is behind the rise of the Public Inquiry? Has there been a shift in their role in society? Do they allow the Judiciary to become too influential in political issues and is this a good thing? Are they a vital mechanism to ensure transparency or a symptom of a society obsessed with eliminating risk?

Readings can be obtained by emailing londonlegalsalon@gmail.com.

 

The application of the Centre For Constitutional Rights to investigate the Pope for crimes against humanity is a meaningless vanity exercise

On Tuesday a bundle of documents was lodged with the International Criminal Court in the Hague,  which purported to found a case that Pope Joseph Ratzinger had committed crimes against humanity under the Statute of Rome.  The papers, lodged by a US based NGO called the Centre for Constitutional Rights (the CCR),  accused the pope and other Vatican officials of having ‘direct and superior responsibility’ for many thousands of sexual assaults carried out by Catholic priests across the globe.  The CCR had been instructed in the case by a ‘survivor lead support group’ called the Survivors Network of those Abused by Priests (SNAP).    According to CCR attorney Pam Spees, when it comes to allocating blame for these assaults, ‘all roads really do lead to Rome’.

The lawyers at the CCR must realise that their claim is doomed to fail. In order for the Vatican and its leaders to be found guilty of Crimes Against Humanity under Article 7 of the Statute of Rome, it would have to be shown that these assaults were undertaken ‘pursuant to or in furtherance of a State or organizational policy to commit such attacks’.  The ICC’s official ‘Elements of Crime’ document indicates that the accused state or organisation must have actively promoted or encouraged attacks and that tolerance or acquiescence is not enough.  To imagine that the Vatican had an organizational policy encouraging its priests to commit these attacks is a deranged interpretation of the facts.  The lawyers at the CRC are clearly more concerned with becoming the wigged-up darlings of Catholic bashing liberals than they are with actually succeeding in their application. 

But a request for intervention from the ICC is not always about securing results.  After all, the Court is yet to secure any convictions and its arrest warrants are routinely ignored.  Rather it is often the application for intervention itself that allows an organisation, whether it be a government or an NGO, to showcase its moral credentials, without having to actually do anything of any significant consequence.

Libya is the most recent example. The invitation issued by the UN under the terms of Resolution 1979 to the ICC prosecutor to investigate Gaddafi provided a useful veneer of moral purpose to an otherwise poorly coordinated and purposeless intervention. The prospect of convicting the Gaddafi regime in an international Court provided a soft alternative to sending in ground troops to flush him out.  This soft intervention was supported by the moralistic charge against Gadaffi that he had committed ‘crimes against humanity’.

Of course this veneer quickly fell away when investigators discovered that both the rebels and the Gaddafi’s regime had committed acts which arguably amounted to crimes against humanity.  The morally black and white provisions of the Statute of Rome are clearly ill suited to arbitrating over a situation with any degree of moral or political complexity.  

They are also ill suited to arbitrating over the problems faced by the members of SNAP.  But this will not deter the CCR. Their application has the same purpose as those issued by western political organisations like the UN:  publicly showcasing their own organisation’s moral credentials.  As long as their disdain for Catholic Church gets a public airing, then this cynical and irresponsible application will have served its purpose.

Further reading for Monday the 12th of September 2011 launch debate

Please find below some further reading for Monday’s launch debate. Some key questions to consider are:

1. What will the Leveson inquiry achieve and is it the appropriate forum for debate on media ethics and regulation?

2. Is greater regulation in favour of media plurality in the public interest?

3. What does the scandal say about society’s attitude towards invasions of privacy? Do we think of such invasions differently when they are undertaken by the media than when they are undertaken by the state? If so, why?

4. How should journalists balance their role as guardians of the public interest with the maintenance of the rule of law? Should either take precedence?

The Screws No More: How dumb does that privacy debate look now?
By Alex Novarese in Legal Week
‘Lawyers should feel emboldened to make a more robust case for more effective media laws’.
http://www.legalweek.com/legal-week/blog-post/2086853/screws-dumb-privacy-debate-look

Phone Hacking: More regulation is not the answer
By Barry Turner for Meeja Law
‘(The response to the phone hacking scandal) is typically British: the rules have been broken so let’s have more rules’.
http://meejalaw.com/2011/07/21/guest-post-by-barry-turner-phone-hacking-more-regulation-is-not-the-answer/

The Leveson Inquiry: Should we care?
By Des Freedman for the New Left Project
‘Inquiries are a useful way of taking some of the heat out of situations that attract great public interest and, by extending debate until it has effectively disappeared from everyday conversation, diminishing the possibilities for change’.
http://www.newleftproject.org/index.php/site/article_comments/the_leveson_inquiry_should_we_care

Monitoring the popular press: An historical perspective
By Adrian Bingham for History and Policy
The experience of the past century suggests that the press is unlikely to engage in a searching self-examination without some external prompting.
http://www.historyandpolicy.org/papers/policy-paper-27.html

Why I broke the law
By Tessa Mayes for Spiked Online
Any journalist worthy of the name should have the courage of their convictions to pursue a story that is worth uncovering. If they can stand by the story, and they believe the risk of imprisonment and fines are worth it, journalists should go for it
http://www.spiked-online.com/index.php?%2Fsite%2Farticle%2F7148%2F

The London School of Economics Media Plurality dossier
Numerous authors
A useful set of materials relating to litigation surrounding the purchase of by BSkyB of 17.9% of shares in ITV and the media plurality provisions of the Enterprise Act 2002.
http://blogs.lse.ac.uk/mediapolicyproject/2011/01/12/media-plurality-dossier-the-case-of-newscorps-bid-for-bskyb/

We look forward to meeting you on Monday.

The London Legal Salon

The ICC in Libya: Assuming its stake in the spoils of the uprising

The capture of Saif Al-Islam Gadaffi by Libyan rebel forces was a short lived victory.  Shortly after his capture, he was able to escape custody and  rejoin the resistance to the rebel advance. 

But even this fleeting victory for the rebels has revealed the extent to which western legal institutions will hold sway in Libya if Gadaffi is ever defeated.  No sooner had he been captured, that the International Criminal Court (ICC) prosecutor had contacted the rebels to ensure Saif Al-Islam was readily passed into custody at The Hague to await trial before the International Criminal Court.   The rebels unquestioningly agreed to hand him over. 


In one sense,  this is remarkable.  Libya has never recognised the authority of the ICC before today.  In fact,  the ICC should not even have jurisdiction over Libya as its government has never signed up to the Court's founding statute,  the Statute of Rome. 

Yet in another sense it is understandable.   The rebels have become so dependent on western intervention in the course of the uprising that they lack the political independence to resist the ICC's calls to intervene.  Further,  ICC has recently used International Law to expand its jurisdiction to countries whose governments have never previously acknowledged its authority. 

The Statute of Rome grants extensive powers to the ICC prosecutor to investigate whether war crimes, genocide or crimes against humanity are being committed by a state.  If the prosecutor finds that they are, the Court can issue a warrant to arrest the individuals responsible in order to try them under International Law.  The ICC prosecutor took this step in relation to the Gadaffis earlier this year.

The prosecutor can start an investigation either at the request the state into which they are to investigate, of their own volition, or under the terms of a UN Resolution. 

Libya is the second of two referrals under the terms of a UN Resolution in the Statute’s history.  The first was in response to the civil war in Darfur, which resulted in a warrant being issued for the Sudanese head of state, Omar Al-Bashir, to be arrested for war crimes and crimes against humanity. 

In the case of both Libya and Sudan two doctrines of International Law are relevant.  The first is that no acting head of state may be prosecuted under the criminal law of another state in a manner which restricts his activity as that head of state.  This is the doctrine of ‘sovereign immunity’.  It is designed as a safeguard of national sovereignty, because it recognises that leaders of countries should be accountable to their electorate rather than foreign legal institutions.  

Secondly, a statute cannot create any obligation nor bestow any rights on a state without that state’s consent in the form of that state becoming a party to that statute.  This means, again only in theory, that states cannot be forced to do things under International Law if they have not freely become party to legislation.

The Statute of Rome strips sovereign immunity from heads of state for the purposes of trial before the ICC.  However, Libya is not a party to the Statute of Rome.  As such, the statute cannot, in and of itself, remove Gadaffi’s immunity from prosecution nor compel the rebels to hand him over.  

The ICC faced the same problem with Al-Bashir in Sudan, as Sudan was also a non-party to the Statute.  But the ICC found a solution. 

Under the UN Charter, Security Council resolutions are binding on all UN member states.  The Resolution requesting the investigation into Sudan obliged all UN member states to cooperate in the investigation into the conflict there.  The ICC found that Sudan was under an obligation to assist the investigation into its own domestic affairs by virtue of its UN membership.  

The result was that a warrant could be issued for the arrest of Omar Al-Bashir even though Sudan was not party to the Statute of Rome.   The same reasoning is likely to be applied to Resolution 1970 in the Libyan case.  The  ICC will not be prevented from prosecuting Gadaffi simply because Libya is not a party to the Statute under which he stands to be prosecuted.

The examples of Libya and Sudan show how the ICC is expanding its jurisdiction, or perhaps more accurately ignoring its jurisdictional limits, through supporting their investigations with UN Resolutions.

This is worrying.  As the Libyan example shows, ICC investigations have a disastrous effect of domestic conflicts.  The Libyan investigation meant that all the nations bordering Libya were compelled, as UN member states, to cooperate with the ICC and arrest Gadaffi if he crossed their borders.  This meant that Gadaffi was left with nowhere to run.  His only option, other than to stand and fight, was to seek refuge in a non-UN member state such as Kosovo or Taiwan; neither of which presented a realistic safe haven.  For this reason, Resolution 1970 contributed to the factors that forced Gadaffi to fight to the end, by cutting off any lines of retreat.

But if Gadaffi is ever captured, the example of Sudan provides an option to the rebels: they could  ignore the warrant completely.  The ICC is dependent on its relationship with national and transnational police forces to execute its arrest warrants.  As such,  many of its warrants,  including that in the name of Omar Al-Bashir, remain unexecuted.  It has no inherent powers of arrest. Libya would be legally obliged to honour the warrant as it is a UN member state.  But what would the consequences of ignoring that obligation be?

The situation would be unprecedented.  Whilst the Sudanese government continue to refuse to acknowledge the authority of the ICC, Al-Bashir remains in power.  In Libya, members of the Gadaffis who are being sought by the Court may soon be captured and ready to hand over.

Refusing to pass the Gadaffis to the ICC would be a powerful statement of self-determination on behalf of the rebels.  A trial on Libyan soil could mark a departure from the intervention that  sustained the Gadaffi regime for so long.  It would demonstrate that the rebels were able to assert Libyan identity against the meddling influences of the West.

But to imagine such an assertion to be possible would be to misrepresent the nature of uprising.  The rebels have become dependent on western intervention.  Without NATO airstrikes, it is hard to see how the rebels would have had the domestic support they needed to succeed.  Because of this dependence, even though Gadaffi may soon fall, the rebel leadership has yet to emerge.  The movement remains shambolic and disorganised.   Notwithstanding their immense bravery, they are yet to present any strong alternative vision of Libyan society for Libyan people to rally around.  Until such a vision is formulated, they will remain dependant on the institutions of the west to artificially bolster their credibility as national leaders.

A trial of the Gadaffis at the ICC will be one symptom of this dependence on western institutions.  The risk is that such dependence allows for greater interference by the west in the running of Libya after Gadaffi, as suggested by the immediate and assuming interference of the ICC.  

We should hope that the rebels move quickly to distance themselves from the western legal frameworks and institutions that supported them so far.  Otherwise the initial driving force of the uprising, the belief in a free and self-determining Libya, may yet come to nothing.

The London Legal Salon Launch

Our first discussion will be at 1930 on  Monday the 12th of September 2011, upstairs at The Perseverance, Lamb Conduits Street Holborn (http://www.the-perseverance.moonfruit.com/) . An introductory blurb for the session is below.  The facebook event can be found here:  http://www.facebook.com/#!/event.php?eid=142282705860857

Attendance is free, but places must be reserved by emailing londonlegalsalon@gmail.com​. You will then receive a confirmation email with the suggested reading for the discussion.

We hope you can join us.

MONDAY 12th SEPTEMBER 2011
THE MEDIA AND THE LAW AFTER 'HACKGATE'

The 'Hackgate' scandal has raised pressing questions about the relationship between the media and the law. For some, the scandal exposed the failure of the Press Complaints Commission to effectively regulate the press and demonstrated the need for more effective statutory regulation. However, many have expressed concern that such regulation would be antithetical to the idea of a free press.

Should the law do more to protect our private lives? What is the likely outcome of the public inquiry and what will its impact be on investigative journalism? Has the media shown itself to be incapable of self-regulation and is it time for the law to intervene?

SPEAKERS

Peter Jukes is a BAFTA award winning screenwriter, journalist and author. His screenwriting credits include BBC drama ‘Waking the Dead’ and paranormal thriller ‘Sea of Souls’. He has been a feature writer for the Independent and the New Statesman and is a celebrated blogger on US politics.

Nigel Calvert is the founding partner of Calvert Solicitors. He is a leading practitioner in Media and Entertainment Law. He has been a visiting tutor at City University since 2000, where he has lectured on the legal aspects of the film, television and music industries.
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