International justice, whether in the Hague or in Strasbourg, has done nothing either to deter genocide or defend human rights

Lawyers await a judgment at the International Criminal Court (ICC) in the Hague (Photo: PA)

The unintended consequences of utopian schemes for the universal imposition of fairness and justice were highlighted, in very different circumstances, by two articles which appeared over the weekend. The first was a very interesting thinkpiece in the Spectator, by Douglas Murray.

Its contention is summarised by the article’s title: “What has this era of ‘international justice’ done to deter genocide?” Murray’s case, which is one that has occurred to me repeatedly over the last year or so, is that the existence of the International Criminal Court, which was supposed when it was established 10 years ago to make the world a safer place, has in fact had the opposite effect: “As Syria now demonstrates,” argues Murray, “far from deterring brutal dictators, the prospect of ending up like Slobodan Milosevic or Charles Taylor has persuaded some of the worst dictators that they only have one choice: to fight it out to the end. The Assads are only the latest family to prove this point. Before them it was the Gaddafis. As the Libyan regime began to crumble, there were numerous attempts to get members of the family out. Yet even neighbouring Algeria was unwilling to give Gaddafi himself exile, and in the days and weeks before his fall, planes with family members on board were turned away from several countries. We will never know how many people needlessly died in those weeks as the Gaddafis looked for exits from the burning building. It was certainly a building which they had set alight, but it was the international community who had locked the doors (my italics).”

Exactly so. Murray points to the example of Tunisia, whose dictator saw the writing on the wall in good time and fled to Saudi Arabia, which sensibly gave him asylum. Libya was a much worse tyranny than Tunisia — whose two dictators (I worked there in the days of Habib Bourguiba) were by the standards of monsters like Gaddafi and Idi Amin (who also took refuge in Saudi Arabia) fairly mild — though Syria is now about as bad as it gets. And as far as Syria is concerned, the fact is that because the international community has made it clear that for Bashar al-Assad there is to be no refuge, the killing will go on. Everyone is now saying, hopefully, that the Assad regime is in its final days. I strongly suspect that it is not, and that Assad will now dig himself in for the duration, and that we will have the worst of all possible outcomes: a bloody civil war which will go on for many years, with Assad or without him. The idea that there might be a “diplomatic solution”, brokered by the saintly Kofi Annan, was always a nonsense; by the time it was proposed, it occurred to me that, as in the case of Macbeth, there could be no compromise, no way back, because already too much blood had been shed; I even went to my Shakespeare and found the quotation; interestingly, Douglas Murray quotes the same passage in his convincing piece, which I recommend in its entirety:

Last week the United Nations — which has proved so incapable of stopping the bloodshed in Syria — released a report concluding that the regime of Bashar al-Assad had committed war crimes. What does the UN expect to be the result of such a conclusion? That Bashar al-Assad will realise he has been bad, and cease and desist? Or will it only serve to enforce his realisation that, like Macbeth, he is “in blood/ Stepp’d in so far that, should I wade no more,/ Returning were as tedious as go o’er.”

What incentive does official condemnation give for Assad to go? Assuming he would at least want to try to save his wife and family, this is exactly the moment at which the UN could do something practical. Not by grand-standing, but by persuading Assad’s remaining wretched allies finally to do their bit, and spirit him away. And why shouldn’t Russia — which has done so much to help Assad prolong the killing in Syria — now be encouraged to take him? Why shouldn’t the UN seek to persuade Iran — which has run Syria as a protectorate over recent years — to give the Assads a villa in downtown Tehran? It may not be the Assads’ preferred permanent bolthole. The fragrant and bloody Asma, wife of Bashar, may resent waving goodbye to the shopping arcades of Paris and London. She may even find herself pining for the fields of Acton. But even a bungalow outside Vladivostok looks appealing if the alternative is swinging from a Damascene lamppost. That is their concern. The concern of this country and the international community should be simply to minimise the loss of life.

The other example this weekend of what I have called the unintended consequences of utopian schemes for the universal imposition of fairness and justice — also involving the dubious consequences of the judicial imposition of international law — was a much less bloody one (though not without the potential for violence and the slaughter of innocent people): it was given in the Sunday Telegraph’s front-page splash, which appeared under the headline “Al-Qaeda terrorists launch human rights bid”.

“Two Al-Qaeda terrorists, one of whom plotted to kill thousands of people in a bomb attack on a British shopping centre, have launched an attempt to have their convictions quashed on human rights grounds,” wrote David Barrett, the paper’s home affairs correspondent. “The pair have applied to the European Court of Human Rights after claiming MI5 was complicit in their torture by Pakistani security services, a claim that has already been rejected by British courts… The new development raises further questions about the influence of Strasbourg over British sovereignty… European judges will… decide on a point of fact… rather than on a point of procedure, which is what the Strasbourg court has been concerned with until now.”

I will not give my views on the Strasbourg “court” here, having already sounded off on the subject of this pestilential institution. But one very obvious thing needs to be said, and will already have occurred to most of you: the Strasbourg court is, it seems, concerned about the rights of these almost certainly rightly convicted terrorists. What about their proposed victims? One of the terrorists, for example, Salahuddin Amin, was jailed for life in 2007 for his role in a terrorist cell that conspired to detonate a massive fertiliser-based bomb at Bluewater shopping centre in Kent or at London’s Ministry of Sound nightclub. If he had been successful, hundreds would have died. What about their rights? It cannot have been the actual intention of the starry-eyed idealists who set up the Strasbourg court (and staffed it with “justices”, many from countries with no tradition of human rights, many with no previous judicial or even legal experience) actually to trample on the rights of the victims of terrorism in such a way as to make future terrorist outrages more and not less likely. But that has been the effect, in this and in other comparable cases.

Nowhere, I suggest, do we see the potentially appalling effect of the principle of unintended consequences more vividly illustrated than in the field of “international law”, a heavily utopian, ideologically driven project, wholly undemocratic in its origins and functioning, whose influence has been growing rapidly in recent years, and which should now, in my opinion, be confronted and radically cut back.