The Evil That Men Do 1
The history of the world is a history of conflict. Marx conceived this conflict as a ‘class struggle’. The struggle for the emancipation of the workers – the struggle towards an egalitarian society. Marx looked up law as an instrument of class oppression, it functioned to bolster the position of the capitalist and keep in check class antagonisms. Whilst there is some measure of truth in what Marx says, I do not think that even Marx could have rationalised the wholly irrational world that has come into being over the past 50 or so years. Today, we live in a world defined by conflict and limited by ignorance.
A CONFLICTED WORLD
Recent events around the world have prompted me to reexamine the question – what is law? Does the liberal claim that law is a purposive activity have any merit, and if so, what exists in countries where the law is not purposive but is used as an instrument of tyranny. There is always the status quo and that is juxtaposed against forces that what to change the system.
Some of the major conflicts around the world today are:
1. Sri Lankan civil war
2. War in Afghanistan
3. Iraq war
4. War in Darfur
5. War in Somalia
6. Conflict in Burma
7. Arab-Israeli conflict
8. Armed conflict in Colombia
9. Communist and Islamic insurgency in the Philippines
10. Internal conflict in Peru
11. Turkey-PKK conflict
12. Somali civil war
13. Kashmir conflict (India/Pakistan)
14. Casamance conflict (Senegal)
15. Conflict in the Niger Delta (Nigeria)
16. Ethnic conflict in Nagaland (India)
17. Insurgency in Oganden (Ethiopia)
18. Kivu conflict (Congo)
19. Chechen War (Russia)
20. Insurgency in the Maghreb (Algeria, Mauritania & Morocco)
21. Balochistan conflict (Pakistan)
22. Sa’dah insurgency (Yemen)
23. South Thailand insurgency
24. War in Chad
25. Mount Elgon insurgency (Kenya)
26. Fatah-Hamas conflict
27. Tuareg rebellion (Mali)
All of these conflicts cannot be examined by reference to any one juristic tradition. Their causes are manifold and the political and ideological backdrop ever changing. So what is law and can it exist in these circumstances? And can there be a duty to obey law in such conflicted systems and if so, what is legal obligation.
In International Law there seems be little problem in trying people for large scale genocide under the broad umbrella of ‘crimes against humanity’. In 2002, the International Criminal Court (ICC) was established in The Hague. The Rome Statute provides for the ICC to have jurisdiction over genocide, crimes against humanity and war crimes. The definition of what is a “crime against humanity” is stated in Article 7 of the treaty as follows:
“Crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder;(b) Extermination;(c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;(f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
This is further explained in the Rome Statute Explanatory Memorandum which states that crimes against humanity are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offence against only a few civilians, provided those offences are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.
The problem with this is that it presupposes some broad juristic principle calling for the preservation of humanity. This then is based on some preconceived idea of what the ‘legal obligation’ to preserve ‘humanity’ consists of. I for one am unconvinced. Please do not misunderstand my position – clearly there are many individuals who have perpetrated untold tortures and genocide against defenseless people who are richly deserving of condemnation. The problem I have with this is this – invariably all those individuals who are brought to trial are deposed and powerless at the time of their trial –
- President of Nazi Germany Karl Dönitz and Prime Minister Hideki Tojo of the Empire of Japan in the aftermath of World War II.
- Former Yugoslav President Slobodan Milošević was brought to trial for war crimes and genocide, but died in custody on March 11, 2006, before the trial could be concluded.
- Saddam Hussein, who was sentenced to death for the atrocities he committed against the Iraqi people during his tenure as President.
- Radovan Karadzic, the former Bosnian Serb leader.
- Former Liberian President Charles G. Taylor was also brought to the Hague charged with war crimes; his trial was provisionally scheduled to begin in April 2007, but was postponed until June 2007 to allow the defense more time to prepare, and is now ongoing.
The jurisprudence in all this:
The position of many modern day lawyers mirrors the views expressed by the English positivists of the 19th century. The English jurist John Austin famously said, ‘ The most pernicious laws and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals ……. An exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice’.
On this view, law is an instrument of political power and it reflects whatever political base exists in a country. Accordingly, when a system loses its political efficacy, it ceases to have any validity and the new system is valid. This means that the people who now have the POWER will call the shots and in my view the many prosecutions for crimes against humanity is an illustration of this fact, rather than any claim based on fairness or morality. The whole idea that ‘justice’ is being served by the work of the ICC is an oversimplification of the forces at work.
A crime against humanity” occurs when there is a widespread or systematic attack directed against any civilian population – isn’t that what happened when the United States and their allies invaded Iraq. When the Soviet Union invaded Afghanistan and more recently when Russia invaded Georgia. When China invaded Tibet. We see this again and again around the world. The United States, the most powerful country in the world and ideologically the most democratic is guilty of many crimes against humanity, the manner in which prisoners are treated in Guantanamo are particularly odious offences in that they constitute a serious attack on human dignity, grave humiliation and degradation of all the human beings held there. The ultimate defense is that they are engaged in a war against terror. What about the terror that they have caused in the world against millions of innocent civilians? Does the death of 3,000 Americans on September 11 in New York justify the actions taken in retaliation for it.
CLEARY WHAT THIS REPRESENTS IS NOT THAT RIGHT IS MIGHT, BUT RATHER THAT MIGHT IS RIGHT. This is essentially the positivist mantra.
Yet justice more than any other concept has been the most closely associated with law. Positivism holds that law and justice sometimes can and is a paradoxical dichotomy.
(TO BE CONTINUED)