In the 1970s the Spectator had a weekly column from mock Ugandan correspondent. In one column the correspondent described how he had been arrested under the What Dat White Boy Think He Doin Act of 1976.
He gave me a belly laugh, but it exemplifies a profound characteristic of the law that caused the five Law Lords some intellectual difficulty when deciding on the fate of the former Chilean dictator Augusto Pinochet.
On one hand, one can say he was a murdering sod who should be brought to account. That approach requires reliance on an appeal to indeterminate universal principles of common decency.
On the other hand, one can say the rule of law must apply. Pinochet had a Chilean equivalent to the What Dat White Boy Think He Doing Act of 1976. Technically it made his actions as head of state legal. They were within the framework of the rule of Chilean law. Similarly, it could be argued that Hitler acted within the letter of German law.
This present a real problem for die-hard believers in the rule of law. For them the law is what is as created by human beings. It is what can be enforced. If it cannot be enforced it is not law. These are the legal positivists. They regard the rule of law as underpinning modern civilisation because it takes humankind away from the rule of the individual on arbitrary whim.
Sometimes, of course, tyrants disguise the rule of arbitrary whim in the cloak of the rule of law, by going through the formality with suborned judges who will do the tyrant’s will. Hitler’s judges are a good example. Anwar’s case in Malaysia is perhaps another. This is why an independent judiciary is essential to the rule of law.
The trouble for the positivists is that their main bulwark against tyranny is faith in the created law. Created law prevents the arbitrariness of tyrants. But what if the tyrants create horrific law?
Enter the natural lawyers. These people argue that there are times when one can and should appeal to some higher unwritten principles. Thus after World War II, they argued that irrespective of what German law at the time said, the Nazis would be made individually accountable. The judges at Nuremberg did not have a code of law to deal with such a case. There was no book describing crimes against humanity. Indeed, it could be argued that they made it up as they went along. They were not acting under the rule of law but rather in a fairly arbitrary way, guided by ethereal concepts like humanity and so on.
This week the Law Lords had to decide whether Pinochet was entitled to immunity from extradition as a former head of state. Under English law he was entitled to that if the acts he was charged with were done in his capacity as head of state. The minority took the positivist view. He was doing things that Chilean law permitted the head of state to do.
The majority, led by Lord Nicholls, engaged in some breakthrough jurisprudence that trod the line between the positivists and the natural lawyers. Nicholls did not say, “”Look here, we can’t have chaps murdering people even if they are heads of state, or officials, acting within the letter of their countries law. We just won’t put up with it we will make them accountable under some new law that we will dream up now.”
Rather he dragged in international law as the benchmark.
Most of the time international law doesn’t matter a fig. Nation states have to agree to its application before it can apply. There has to be a voluntary submission to the jurisdiction. Now Pinochet was certainly not volunteering.
Lord Nicholls argued that Pinochet did indeed have immunity for acts performed as head of state. (He could have confiscated an Englishman’s property, for example, and not be sued.)
But Nicholls cleverly limited the immunity to “confer immunity in respect of acts performed in the exercise of functions which international law recognises as functions of a head of state, irrespective of the terms of his domestic constitution.”
“”And it hardly needs saying that torture of his own subjects, or of aliens, would not be regarded by international law as a function of a head of state,” he said. “”Similarly, the taking of hostages, as much as torture, has been outlawed by the international community as an offence. International law recognises, of course, that the functions of a head of state may include activities which are wrongful, even illegal, by the law of his own state or by the laws of other states. But international law has made plain that certain types of conduct, including torture and hostage-taking, are not acceptable conduct on the part of anyone. This applies as much to heads of state, or even more so, as it does to everyone else; the contrary conclusion would make a mockery of international law.”
He then cited various conventions on torture and hostage-taking to prove the point.
We are coming the full circle. Those woolly, principles of universal appeal are now written law and are being applied an enforced internationally (that is, universally).
A huge legal debate was unleashed after World War II in the face of German and Japanese atrocities. In centered on a conundrum. How to you upholding and apply the civilising influence of the rule of law in a situation where the German and Japanese law on the ground was so inherently disgusting if you can only do that by appealing to an arbitrary benchmark of what is disgusting dreamt up at the time which in turn is not rule of law.
The answer, as Lord Nicholls has put it, is you start defining universal international laws and you apply them so the law is not mocked by overruling inconsistent national laws, like the What Dat White Boy Think He Doin Act of 1976.