Transcriber: Célide Peña Reviewer: Capa Girl
Many of you in this room have been reading in the
papers over the last few days about what's going on in Syria.
And probably you are as appalled as anyone else
of the images of mass killing on all sides,
of the taking of innocent life of children, women,
completely defenseless people.
And you're probably asking yourselves:
"Why isn't anything being done to stop it?"
I want to talk a little bit about the system of international rules
that allows you to begin to answer that question.
And I want to do it by reference to a case to have come to,
as I conclude, that took place ultimately in the Houses of Parliament.
The judgment given in November 1998
in a case that many of you would be familiar with involving
senator Augusto Pinochet. Decisive moment that goes
very closely to the kinds of issues we're talking about
when we ask the question:
"Why isn't president Assad being stopped from killing?"
I work as an international lawyer. You've probably have
heard about international law. You probably don't know
a huge amount about what international law is.
It's traditionally described as the rules that govern
the relations between states.
I wake up in the morning, I switch on my computer,
I have emails about the sort of cases and issues that I'm involved in:
the protection of human rights in the former Yugoslavia, the cases of Vukovar;
the right to return of the Chagossians to the Island of Chagos,
part of the decolonization problems involving
the United Kingdom and a load of other cases.
And classically the world that I deal with,
is a world between states,
it's a world which governs relations between
the two hundred or so countries that occupy the world.
If you were to step back from this planet, jump up to the moon,
and look at how we organize ourselves
you'd think it's pretty weird.
We've divided ourselves into about two hundred countries
and the basic idea of international law is that
within those two hundred countries -- and it used to be
only forty or fifty in the 18th and 19th centuries --
states, governments are free to do whatever they want
to their citizens.
They can torture them, they can kill them,
they can disappear them,
they can adopt rules saying that, you know:
"every female over the age of sixty is going to be killed,"
"every male under the age of fifteen is going to be killed."
The classic rules of international law are premised on
the concept of sovereignty, the power -- absolute power of the state.
That changed dramatically in the 20th century
and it's the idea that is at the heart of that change,
the idea that finally gives a role and a place for an individual
that is at the heart of the answer to the question that I posed at the outset
and that dominates the answer to that question.
It's the one that I want you to think about.
What happened? We know about the atrocities in Stalin's Soviet Union.
We know about the atrocities in Germany
and in many occupied countries in the '30s and in the '40s
and the argument of the government of those countries
at the time was: "Well, we may have domestic rules
that limit what we can do but there's no rule of
international law that stops the killing."
Individuals have no rights.
A very small number of people in the middle part of the 20th century
started developing the idea that actually individuals did have rights.
And the rights of individuals were exercisable against state.
For the first time, ever, the very recent idea
an individual could stand up and say:
"You Mr President are not allowed to do that.
You are subject to constraints, not the constraints of
your domestic legal order but the constraints of
your international legal order."
And that's what culminated in the creation of instruments
that many of you are very familiar with:
the Universal Declaration on Human Rights,
the European Convention on Human Rights and then
other instruments that emerged in the late 1990s like
-- also in 1998 the year of the Pinochet case,
the statute of the International Criminal Court.
In fact that was the year that was vital for another reason,
in that same year - 1998 - for the first time ever,
for the first time in human history, a serving head of state
was indicted by an international court:
Slobodan Milošević. It had never happened before.
Now that is a vital change. A change which is premised on
the very simple idea that individuals have rights against their state.
That was a development that was hard fought for
and which, I have to say right now, is under challenge
and under threat. Why? Well, many of you remember
the events of September 11th
and with the events of September 11th a number of governments
that had been at the heart of promoting the idea that
"every human person has rights", an idea reflected for the
first time in a very obscure document called
the 'Atlantic Charter' adopted in 1941 by Churchill and
Roosevelt, that idea that "every individual has rights,
whoever they are, wherever they may be, in whatever
circumstance they may find themselves in" is now under
threat from those who promoted the very idea.
Why is it under threat? Well, many of you are familiar with
the stories about banging people up because they are alleged
to be terrorists and holding them without charge
indefinitely for the rest of their lives -- I wrote a book about that.
About and individual Mohammed al-Qahtani arrested in
2002 still detained at Guantanamo, has not being charged,
has no release date and it appears will be held for the rest
of his natural life because of a 'so called' war on terror.
You're familiar with the idea of "drones", the idea that
all of a sudden because we are 'at war'
we are free as a nation,
or as Americans, to define individuals who pose
a threat to our society and just take them out.
Other people call that extrajudicial killing.
It's done in Afghanistan and it's extended beyond the war-zone
to places like Pakistan and to places like Yemen.
Well, if you are going to take people out
because they are alleged Al Qaeda individuals in Pakistan
why not do it in Edgware? Where do the limits stop?
When you start deciding you are simply going to eliminate those
individuals abandoning the rules that were put in place
in that remarkable period in the decade after
the Second World War.
So, we face a fundamental challenge in relation to
whether we care about these rights. The idea the individual
is now an actor on the international stage and has rights
exercisable not only in relation to his or her fellow individuals
but against the state. And rights not just before national courts,
rights before an international court and international instances.
That was a hard fought victory in the 1940s
it was unique, for millennia there had not been such rights
and yet there are now people in this country, too
in this parliament also who say the time has come for
the United Kingdom to withdraw from the European Convention
on Human Rights. Because, why? Because they don't like
judgments about prisoners' voting rights or they don't like
the way in which certain immigrants are allowed to have
certain rights but that is the essence of human rights.
That is the essence of the system that was put in place,
is that no one falls into a black hole.
Everyone has minimum rights at all times and in all circumstances.
And at the heart of that idea is the place of
every human individual having indivisible rights to be exercised at all times.
Now, I mentioned this building Parliament and why it was significant.
On the 24th of November 1998 I was involved
in receiving a judgment in a case that I've been involved in --
the Pinochet case. And in sense the case articulated the
moment when the idea of individual rights became very real.
What was an issue? Some of you will remember what happened.
Senator Pinochet came to the United Kingdom, for medical treatment.
He took tea with some rather powerful friends and
then one day out of the blue a knock came on the door
and he was arrested. Arrested for allegations of international
crimes committed in Chile very far away not even against
British nationals.
The idea was posited on something called 'universal jurisdiction'
the idea that some crimes: torture, disappearing, killing on a significant scale,
crimes against humanity that are so terrible
that any country can exercise jurisdiction in relation to those crimes.
And a Spanish prosecuting judge decided to indict
senator Pinochet for those crimes and he was in England,
an arrest warrant was issued seeking his extradition to Spain.
Senator Pinochet did exactly what one would
expect him to do, he said: "You can't arrest me, I am the State."
That's the 19th century view of international law.
'L'Etat, c'est moi.' I have absolute power and you
the English courts, the Law lords on the House of Lords are
not entitled to overwrite my immunity.
The case was argued for quite a few days and a couple of
weeks after it was argued we trotted off to
the Chamber of the House of Lords, when the grand old tradition
has changed now, we got a Supreme Court,
five Law Lords stood up in turn to give the judgment.
It was the single most decisive
and defining moment of my professional life
in which the system of international rules, the old system, was cast away.
Never before had any former head of State been held
in the courts of this country or any other country outside
his own to be not entitled to claim immunity for a mass crime.
And the Law Lords took their vote, very soon on we would
two nil down. Two out of the five had voted for immunity.
And then it was 2-1 and then it was 2-2 and there was one
judge left to express a view and at the moment when
that judge articulated his view things were very finely balanced.
You go with the old system: absolute immunity for former head of State.
Or do you go with the new system?
The system that says individuals have rights
and that right includes the right to proceedings, legal proceedings against
people who commit crimes that are particularly heinous.
And the fifth judge -- the fifth judge said 'no immunity'
and at that moment you can hear, you can still see it on
the CNN website, the BBC website if you go to the archive
there was certain sharp intake of breath.
It was a remarkable moment because it was the moment
more than any other where one recognised that the system
had indeed changed and there's no room for complacency.
A lot has happened since then. It's extraordinarily important
that we do not lose the right of individuals to be protected
against their own governments at any time.
Every single person in Syria who is subject today in Homs
or elsewhere, to the kind of heinous terrible indiscriminate attacks
that are taking place is entitled to turn around to us
and to say, to us and to our governments:
"You adopted a new system in the middle of the last century,
you are required to respect that system
and you are required to protect us from this kind of
system that is taking place."
That is the new system of international law.
That is the new set of rules that were talked about
for the person who spoke, sang wonderfully credibly movingly
just before me.
That is a system which reflects a single idea:
the place of the individual in international society.
And I invite you all to think about it
and to defend it with everything you have.
Thank you very much.
(Applause)