Sir Geoffrey Nice QC on International Law

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source: GreshamCollege          2012年10月10日
A series of lectures by Sir Geoffrey Nice QC, Gresham Professor of Law, on international law and international criminal tribunals. The transcript and downloadable versions of the lecture are available from the Gresham College website: http://www.gresham.ac.uk/lectures-and...
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1 59:18 The End of Slobodan Milošević
Slobodan Milošević died a few months before the end of his trial. There were no closing arguments and there was no judgment by the judges of the International Criminal Tribunal for the Former Yugoslavia -- the ICTY.
Sir Geoffrey Nice had been preparing closing arguments as the case proceeded and will explain what some of them were. Would those arguments have suggested Milošević was a deranged political dictator or merely a politician seduced by events to make bad -- criminal -- decisions? How should a prosecution craft its arguments about a single individual on trial for events that happened in a grave conflict without running the risk of 'over-prosecution'? How can four years of a trial focused on one individual avoid distortion of the complex political, military and historical realities which made mass atrocities possible?
Had Milošević's case concluded, would arguments of the Prosecution and judgments of the court have depicted a man so different from how we see ourselves and how we see 'ordinary' political leaders that the trial would have achieved little beyond achieving some retribution, some deterrence and bringing some resolution for survivors and bereaved? Or might the trial have been seen as a warning for those other 'ordinary' political leaders of how easy it is for political power to lead astray and corrupt those who might, in other circumstances, have ended their lives honourably -- all showing how valuable may be the mechanisms -- of democracy or otherwise -- that allow us to restrain bad leaders before they get worse.
2 57:40 International Criminal Tribunals 
Slobodan Milošević died a few months before the end of his trial.  There were no closing arguments and there was no judgment by the judges of the International Criminal Tribunal for the Former Yugoslavia -- the ICTY.
Sir Geoffrey Nice had been preparing closing arguments as the case proceeded and will explain what some of them were.  Would those arguments have suggested Milošević was a deranged political dictator or merely a politician seduced by events to make bad -- criminal -- decisions?  How should a prosecution craft its arguments about a single individual on trial for events that happened in a grave conflict without running the risk of 'over-prosecution'?  How can four years of a trial focused on one individual avoid distortion of the complex political, military and historical realities which made mass atrocities possible? 
Had Milošević's case concluded, would arguments of the Prosecution and judgments of the court have depicted a man so different from how we see ourselves and how we see 'ordinary' political leaders that the trial would have achieved little beyond achieving some retribution, some deterrence and bringing some resolution for survivors and bereaved? Or might the trial have been seen as a warning for those other 'ordinary' political leaders of how easy it is for political power to lead astray and corrupt those who might, in other circumstances, have ended their lives honourably -- all showing how valuable may be the mechanisms -- of democracy or otherwise -- that allow us to restrain bad leaders before they get worse.
3 57:19 Africa and the permanent International Criminal Court (ICC) 
The permanent International criminal Court (ICC) was long in planning and finally came into existence after the ad hoc Yugoslavia and Rwanda Tribunals (the ICTY and the ICTR) were seen to have had some success.
However, problems facing the permanent court that involves itself in continuing conflicts have been seen to be different from those of the ad hoc tribunals that deal with conflicts that had been largely concluded when the tribunals first sat.  African countries whose citizens have been brought before the ICC complain of unfairness and bias and that the ICC has become a court for Africa, nowhere else.  May they be right?
Has the court dealt evenly with different countries or has it shown itself to be vulnerable to political influences?  When the ICC becomes involved in continuing conflicts - as it has done in Africa -- does it inevitably become involved in the politics of regime change and even in the conflicts themselves?  Does the tension between the universal jurisdiction claimed by international criminal courts and the immunity of heads of state from pursuit in courts help or harm when the tension leads to some heads of state remaining in office simply to maintain their immunity from pursuit?
Sir Geoffrey Nice's involvement in the Sudan, Kenya and Libya cases may provide insight and indicate how a venture some think doomed could yet be saved.
4 1:00:31 Legal Process as a Tool to Rewrite History: Law, Politics and History
Trials at the ICTY concerned political violence and criminality that resulted from disintegration of a federation from which seven new successors states were formed.  That process has been defined as a 'clash of state projects', where violence happened in areas claimed by two or more parties, or an aspiring state. The war crimes trials at the ICTY that resulted from overlapping territorial claims in Croatia, Bosnia and Kosovo produced a huge record of trial evidence. Problems in the very small state of Kosovo may be seen as the beginning of the violent process of disintegration, now known loosely as the Balkan wars of the 1990s. The conflict in Kosovo of 1998-9 may be seen as the end of those wars.  Kosovo now seeks global recognition as an independent state but faces opposition both as to its international legal entitlements and as to how its history in the conflict should be viewed.
Conflicts in the small state of Bosnia may be seen as the heart of the 1990's Balkan wars. Bosnia's complex constitution and uncertain political equilibrium have left it with an insecure future. ICTY trials had several objectives, including bringing retribution and achieving deterrence but they never sought to write history and those who would seek historical truth in the trial record might be disappointed; every trial record produces at least two competing narratives, a Prosecution narrative and a Defence narrative or narratives, neither / none of which may be accurate. Yet outside the courtroom, the trial record will be used - or abused - for shaping the collective memory of the peoples and nations involved and for providing an overall narrative of the wars themselves.
The struggle for the interpretation of historical events through the trial record might be as important in long run as the determination of guilt or innocence of the individuals tried.
Kosovo and Bosnia both face a former foe -- Serbia - which might like to leave a 'historical record' that suggests moral equivalence between Serbia and Kosovo and between Serbia and Bosnia.  The ICTY's policy of prosecuting representatives of all states /entities involved in the wars, may have contributed, some argue, to a  concept of 'proportionality of criminal responsibility' that may assist Serbia in achieving this goal.  In any event, Serbia may have shown itself skilful in the use of the court system and of the court record to write or re-write narratives of the conflicts in Kosovo and Bosnia? If it has, how can Kosovo and Bosnia fight back and write their own -- or at least better - narratives? 
5 54:01 State Involvement in War Crimes Trials
International war crimes courts deal only with the responsibility of individuals for crimes they committed. In order to avoid over-simplification of understanding what may have happened by the necessary concentration on individual criminal responsibility, it is vital not to overlook collective and state criminal responsibility; but state responsibility can only be dealt formally with at a different court, the International Court of Justice.  Has this allowed states to escape attention that should have been paid to their responsibility -- as states -- for conflicts, a responsibility different in kind from the responsibility of their leaders?
All war crimes trials rely on cooperation with states, often the very ones which were involved in the relevant war, for production of valuable documents from state archives and to facilitate access to witnesses. States will be obligated by membership of the UN to cooperate while at the same time wanting or needing to obscure information that would make public the involvement of the state in the  commission of crimes and mass atrocities.
What does the evidence in the Milošević trial and in other ICTY trials tell us about the responsibility of states, and not just of the states involved in conflicts?  What does it tell us about the vulnerability of trials such as Milošević's to state interests that may run counter to open, forensic exploration of complex histories?
6 1:15:56 Regulation at Home, but not Abroad 
In December 2012 Sir Geoffrey Nice finished four years as Vice Chair of the Bar Standards Board, the body that regulates barristers. After forty years in practice as a barrister, that included seven years working as an employed barrister in the UN, he will describe the differences between practice in a regulated legal community and practice in the UN system that operates with little effective regulation apart from what national systems impose on individual prosecution and defence lawyers. He will also review what he learnt as a regulator from looking critically at the Bar of England and Wales. The Bar of England and Wales and the country's legal system as a whole proudly assert that they are the best in the world.  Are these claims justified?  If so, why was legislation thought to be necessary to regulate them more closely, and was that legislation wise?
Can advantages that may exist in a national legal system -- such as that of England and Wales -- be introduced into international systems where lawyers from many countries and with different legal cultural backgrounds work together?
7 1:00:39 The Informal Vietnam Tribunal 
Informal Tribunals dealing with armed conflicts include that established for the Vietnam war by Bertrand Russell. This - and other similar tribunals - showed how the citizen is not bound by the willingness of the great international organisations to intervene in known atrocities. The lecture will summarise the factual issues, show how international legal systems were unable to cope and focus on the work and findings of the informal tribunals.
8 1:05:46 The Iran Tribunal 
Many innocent Iranians suffered terrible atrocities and death in the regime of the Ayatollahs in the 1980s. The UN failed to record the crimes in a formal way at any court or tribunal. Groups from around the world established an informal tribunal that prepared a report in 2013, publicly condemning the Iranian regime of grave crimes. Work of this tribunal provides a further example of how citizens dissatisfied with the performance of international institutions can deal with difficult problems in faraway places.
At this lecture there were accounts of the nature of the torturing of individuals with a contribution from an imprisoned victim explaining how it was possible to maintain sanity and to survive in circumstances where many would succumb.
9 1:06:27 Law as a New Religion & other topics 
Law is everywhere providing answers to almost everything. Ever larger numbers of students want to be part of the legal mechanisms that control us, regulate us and take over from politicians when politicians sense their own incapability. It is almost a new religion. In this lecture -- and in the discussion to follow -- some of the issues dealt with in earlier years by Professor Bogdanor (such as in his lectures, Judges or Legislators: Who Should Rule?, The Judges and the Constitution and The Human Rights Act: Cornerstone of a New Constitution) will be reviewed as will the effect of Europe on our law.
10 59:13 Head of State Immunity: a Useful Relic? 
Is Advocacy an innate skill or can it be taught? How might we teach it: http://www.gresham.ac.uk/lectures-and... UK lawyers used to think that advocacy was a God--given art. In the last 20 years -- not more - they have discovered how to train advocacy, applying skills acquired from jurisdictions around the world. Analysis of how advocacy really works benefits from looking back at earlier periods, and then looking forward to today and beyond asking whether advocacy is for establishing the truth and whether the advocate is as if the person represented or simply advocating to win on the client's behalf at almost any cost. This lecture may include practical demonstrations of examples of advocacy and may involve active engagement with the audience -- if willing!
11 55:43 Burma and North Korea: Avoid the Law unless Convenient 
What has been done, and what might we do about two of the world's most repressive states: http://www.gresham.ac.uk/lectures-and... Conflicts in both these countries show the real limits of international law when there are powerful neighbours and geo-political interests to worry about. Both conflicts show how easy it is without international legal intervention for such conflicts to stay little known. In this lecture the history of these conflicts, and the atrocities known to have been committed in each, will be summarised and set beside legal actions that have been attempted but that failed.
12 1:04:50 Advocacy: 'as if' the Person Represented, or 'for' Them?
Sir Geoffrey Nice QC consider the history of state immunity and its likely future: http://www.gresham.ac.uk/lectures-and... Head of State Immunity, once unchallengeable, may now seem an antiquated concept rather than an essential component required for the orderly management of international affairs. Heads of State have become exposed to judicial intervention by international tribunals. Prosecution of Kenya's President, Kenyatta, at the International Criminal Court (ICC) will be considered, as will the theoretical and practical basis for preserving Head of State immunity. Related and recent developments in the world of international criminal tribunals will also be explored, including the revelation by a judge at one tribunal of straight political pressure said to have been exerted on judges to reach verdicts that would be favourable to states that intervene in the conflicts of others.