By Sir Geoffrey Nice QC

To be asked to help in any one else’s crisis – personal, state, international and whether one is a doctor, lawyer, fire-fighter, NGO activists, politician – is a privilege.  For me to be asked to speak here is a double privilege. 

First for being asked at all in respect of a crisis such as that facing North Korea.

 

Second for being followed by speakers of such quality who all have detailed knowledge greater than I will ever acquire about North Korea.  Any one of them, to whose speeches I greatly look forward, would arguably be a better ‘keynote’ speaker than I can ever be on this topic; but I must say what I can.

 

My experience is as a lawyer working in the courts that deal with crimes committed in armed conflicts and with Crimes against Humanity generally.

 

Although there is no actual armed conflict – internal or international – in North Korea, what these other tribunals tell us about what judicial processes bring, or can bring, is relevant the North Korea problem. 

 

More important is what they do not bring.

 

To understand the way modern tribunals that deal with human rights abuses actually work requires a longer and wider perspective.

 

For thousands of years conflicts between states, or conflicts between tribes, or civil wars within states, did not allow outsiders - those from other states or from international organisations – to check after the conflicts were over whether the conflict was one where recognised crimes had been committed.  For most conflicts, once they were ended, the rule tended to be ‘the winner takes all.’ 

 

And for the battles or persecutions themselves – international or national and while they were happening - it was not the practice for external non-involved states to intervene in the conflicts even if crimes were known to be being committed, unless for the self interest of the country intervening.  This has been the way of the world for the thousands of years that humans in groups have done terrible things to one another, in war or by the exercise of the commanding power of a state over its citizens.

 

As recently as at the London Conference of 1945 that preceded the Nuremberg trials of the leaders of the defeated Nazis, US prosecutor Justice Jackson explained the approach.  He was party to a having a narrow definition of the crimes charged against the Nazi leadership, and he explained why.  Echoing a similar position taken by US Secretary of State Lansing in the First World War (and showing a consistent thread of US foreign policy) Jackson made it quite clear that it was no part of the USA’s functions to interfere with the internal affairs of another country, even if they were exterminating their citizens.

 

‘…..It has been a general principle of foreign policy of our Government from time immemorial that the internal affairs of another government are not ordinarily our business; that is to say, the way Germany treats its inhabitants, or any other country treats its inhabitants, is not our affair any more than it is the affair of some other government to interpose itself in our problems. The reason that this program of extermination of Jews and destruction of the rights of minorities becomes an international concern is this: it was a part of a plan for making an illegal war. Unless we have a war connection as a basis for reaching them, I would think we have no basis for dealing with atrocities. They were a part of the preparation for war or for the conduct of the war in so far as they occurred inside of Germany and that makes them our concern.'

 

Jackson expressly made clear that the narrow definition of crimes deployed at Nuremberg was, in part, necessary to save the US from allegations that it had done things in the past that would otherwise be categorised as crimes – may he have had the genocide of the Native Americans in mind?  So the law itself was ‘bending’ to political interests.

This was the philosophy at work for the Nuremberg trials that dealt with the leading Nazis and for the Japanese Trials, organised by General McArthur that dealt with the Japanese leaders.

 

This philosophy of not getting involved, however, yielded to the desire to try and punish people from warring states when either the victor wanted to do that as at Nuremberg or other political interests made that a preferred course; those other political interests could, of course, be the worthy ones of bringing peace and justice. Churchill would have shot the Nazi leaders after World War II just as might have happened to the leadership of the losing sides in conflicts for thousands of years.  But Roosevelt and Stalin want the publicity of trials, and Stalin had plenty of experience of what used to be called ‘show trials.’  They won. Nuremberg may not have been a Russian style show trial but it, and the Tokyo trials, were both examples of what has been called ‘victor’s justice’ because only the losing side was investigated and tried in court.

 

There is a temptation to hope that tribunals established in the last 20 years to try ‘war criminals’ have been driven by some pure moral purpose and are free of political influence or objectives. 

 

However, most of them – not all – have shown a willingness to see only one side of any conflict investigated and tried.  As with the Nuremberg and Tokyo trials after World War II, this may satisfy the main victims of any criminal aggression, but it can, and does, build up negative reaction in the territories concerned. 

 

Thus, in Rwanda although the Tutsis were the majority victims by far, the Hutus – tried for crimes – did also suffer.  Investigation of their wrongdoing was blocked by political pressures. 

 

The recent Balkan wars were a six sided series of battles.  The Serbs are widely regarded as the worst offenders, calculated by number and gravity of crimes committed.  All sides of the conflict were subject to some investigation and prosecution by the international Yugoslav Tribunal set up by the UN.  Many individual Serb military and civil leaders have been tried.  Serbia, as a state affected by the findings of criminality against its citizens, does all it can through the trial system to leave as ‘gentle’ a history of Serbia’s responsibility for the crimes of its citizens in the Balkan Wars as it can.  It is skilful at controlling public opinion by creating and leaving for posterity some record of the Serbs being unfairly targeted when other states are let off lightly.  Serbia has been resolute and skilful in restricting evidence made available to the Tribunal because Serbia as a state does not approach the history of the wars or its duty to cooperate with the Tribunal driven by some pure moral purpose, free of political influence or objectives.  It is just like the countries that avoid their citizens, or some of their citizens, being pursued in courts, such as the Tutsis of Rwanda, or the Government side supporters of the conflict in Uganda.

 

This is done for several obvious reasons.  In the Balkan wars the record that Serbia manages to leave for posterity may not be fair but is designed to let Serbia come out of the process with too good an image of how it conducted itself in war. 

 

That may, of course, in itself create problems for the future in the Balkans.

 

Human rights lawyers like to think of there being a body of law, common to all peoples, that transcends domestic laws and that is in some sense universal – almost God given.  I reckon that there may be only one truly universal law applicable to all humans and all countries: the law that says never own up to what you have done and ‘massage’ history to the extent you can.

 

Working with justice issues – nationally and internationally, over crimes of rape and murder at home or genocide and crime against humanity abroad – I have been impressed by one common feature in the need for victims to know what happened to them and their families and why.  It is easy for those of us – like me – who have never been a victim of torture or oppression and who have not had close family or friends who have been victims – to overstate the value of a reliable record of past events in the process of recovery of a nation from conflict or in the process of a divided nation achieving some reconciliation.  It may be too easy for us to understate the real value of there being retribution against those who have oppressed their fellow humans by crimes. 

 

Outsiders would always like to imagine that the unspeakable problems of others are things of the past, and for many reasons:

 

First they may be peaceful people who would simply like to see others living in happy harmony.
Second they might like to see the commercial opportunities that follow real or apparent repair of broken societies becoming available to their own countries through trade, something unlikely to prosper in a country on trial for war crimes.

 

Third they may have their own interests of a different non-commercial kind that may be eased by issues of conflict being thought to be resolved.  For example, a state or international organisation that intervened unsatisfactorily in the conflict of another state might fear there being trials of that other state’s leaders for what would be revealed.  There may be reflection of this is the approach of various bodies to the son of the late President Gaddafi of Libya who fear what his trial might reveal about the willing involvement of ‘respectable’ states in the Gadaffi regime or in the way parts of the international community blocked evidence of intercepted transcripts being made available in the Milosevic trial because of what they might have revealed about the knowledge and culpability of the West. 

 

An example of the second problem is Burma.  Many people outside Burma who were aware, or partially aware, of the human rights abuses happening there campaigned in various ways for the UN to act in some way that would hold the Burmese – Myanmar – leaders to account.  They pressed for there to be a Commission of Inquiry.  For many Burmese Diaspora in, say, the UK achieving this was an end that would have brought them the satisfaction of thinking that they had achieved good for their country.  What happened – as you will know – is that once An Sang Suu Kyi was released from prison and was returned to active politics – in ways that some would say reflected compromise by her – the international community has been far, far less keen to hear of humans rights abuses and perhaps still less keen to consider instituting any international trial process – that could so easily be started by a proper UN Commission of Inquiry – when there are very considerable sums of money to be made from developing Burma’s international trade.

 

It is interesting to dwell a little longer on the way Burma is seen from London and by the Diaspora and activists who pressed for formal recognition of criminality by the international community that would deny impunity to leaders who may have committed grave crimes.

 

To begin with, they were despondent at seeing years of toil – much of it on behalf of An Sang Suu Kyi – set at naught (zero).  They had felt able to channel their concerns for the barely visible victims of the fairly closed society of Burma through ‘The Lady.’  They felt nothing had been achieved once she compromised with the Myanmar leaders and that they had no further function to perform.

 

Soon, they became, to an extent, unpopular with those who wanted to say that Burma was ‘out of the woods’ and should not be troubled too much with its past.

 

However, after a short further period of time and, as the truth of continuing bad things being done in Burma emerges, these activists are fashionable again.  The enthusiastic supporters of trade who might have favoured overlooking past crimes know now that the treatment of the Muslims, for example, can not be set aside quite so easily or at all and that the need for accountability is one that should not go away or be suppressed.

 

Three other examples of important things that people have done and are doing and that may be worth all of us having in mind as we approach the present North Korea problem. 

 

First the informal Russell Tribunal held in 1967 to deal with the Vietnam War.  This terrible war, fought over competing economic ideologies, had the USA committing acts that many thought to be dreadful crimes.  There was no mechanism to investigate such beliefs and the USA itself – like any other government in power facing criticism of its actions - will not conduct a proper investigation into what it has done.  So Lord Bertrand Russell a philosopher and other philosophers and intellectuals such as the French Philosopher Jean Paul Sartre, set up and ran an informal tribunal to inquire into the war.  Sadly they diminished the value of what they did at the time by showing too obviously their own political inclinations and by declining to explore at all any wrongdoings of the north Vietnamese.  Yet, once more truth was revealed by US Secretary of State Robert McNamarra and from other US sources, their conclusions were shown not to be that inaccurate or unfair and future generations may well thank the Russell Tribunal for having been an early and independent source of record for what the Vietnam War actually involved.

 

Other informal Tribunals have had considerable success in different ways.

 

The Japanese Comfort Women Tribunal dealt with an issue that men at war were disinclined to confront although the terrible abuse of women from many countries including, of course, Korea was well known at the time of the post WWII Tokyo trials. The informal Comfort Women Tribunal allowed the many victims to speak if they wanted to and to be spoken for by others in establishing a better, fuller version of the truth of what had happened.  Some, at least, of the Comfort Women have seen their suffering and abuse recorded before their deaths, even if the Japanese Government has not been willing to confess in any full and unqualified way for what it did.

 

Third an informal tribunal sat in London and the Hague last year to deal with the mass murder of political and other opponents of the regime of the Ayatollah in Iran.  It was a well known mass abuse of human rights that the UN would always find too sensitive or dangerous to confront.  The Tribunal was now able to hear from witnesses by Skype if they could not appear in person and to ‘feed’ a live record of its proceedings back into Iran via the internet. Iran was invited to participate and, of course, did not even reply.  But the Tribunal left, a better fuller record of history together with the judgment expressed about the regime by the leading Human rights lawyers and judges, who participated unpaid in the work of the Tribunal, just like the Russell Tribunal on Vietnam.

 

There are, I think two or three critical lessons to be learned from the larger landscape.  First, do not trust major nations or international organisations to do what needs to be done with criminal or corrupt regimes such as that in North Korea.  They will often have reasons – dubious or sometimes shameful – for doing nothing.

 

Second ensure that by whatever means there is a process that will be able to hold criminal leaders to account – do not let the balance of justice v peace give the leaders a complete amnesty for what they have done.  All the victims to whom I have spoken – and I never spoke to Nelson Mandela I regret to say – are clear that a justice system that threatens the impunity leaders have enjoyed means a great deal to the victims and can affect the future conduct of those who have committed crimes, and of those who may be about to commit crimes.

 

Third recognise the incalculable value to victims and all citizens of countries emerging from conflict of having a good record left of what happened to them and their families.  These days, remember that it is quite unnecessary to rely on the big international organisations for that.  There is a great deal that can be done by the individuals at low costs through the means of communication and disseminating information we now have at our finger tips.  And, many would say, ensure that different means of helping countries to emerge from conflict are best done in combination and that the single activity – Truth Commission, Criminal trial, compensation etc – is less effective when not in combination with other measures.

 

For North Korea we are really fortunate that the UN made an inspired choice in getting Judge Michael Kirby to run the Commission of Inquiry.  He is a brave and fair judge and, together with Sonia Biserko, a human rights worker of long standing who has dared to stand up to her fellow Serb countrymen when they have been acting criminally in wars, will not only allow all witnesses who can and want to give evidence but will, to the maximum extent possible, ensure that the record of their proceedings in public, They may, or not, recommend a justice process in the form of a tribunal to be set up to deal with those suspected of crimes.  Even if they do, as I would hope, there may be obvious difficulties in the way of the tribunal delivering that much, at least for now.  But by ensuring everything possible is made public they will achieve at least one of the other things critical to the resolution of the misery that we know has been North Korea.  It will be a start - more than a start.  It will fit well with the work already being done.  When North Korea emerges from the lunacy of its recent years it will be possible to look back on the work of the Commission, perhaps on the work of a Tribunal and certainly on the work of all women and men of good will who have done what they can for the country, and to see how all the different activities will then be seen to be milestones in a necessary journey that North Korea must make.