No one questions how difficult it is to pursue the perpetrators of crimes against humanity. But in cases of genocide, the answer begs the question: are we really to believe that an international rule of law exists, and that it is effective?
That is not to say that there has not been progress. Last July, a statute was adopted in Rome by the international community which stated the intention to set up a permanent International Criminal Court. Although 74 nations have signed, including the UK, Croatia and Chile, a sizeable number, including the United States, has not yet ratified the statute. If those participating countries do not ratify the statute soon, an opportunity will be lost.
But there are glimmers of hope. In May this year, the Appeal for Peace Global Conference will take place at The Hague. One of its purposes will be to spur efforts towards ratification of the Rome statute, which is currently bogged down in politics and complicated procedural discussion.
There have already been a number of moves on a more individual level. Two weeks ago, with seven other senior British barristers and one High Court judge, I spent a weekend at the ad hoc international court for war crimes perpetrated in the former territory of Yugoslavia. This is a truly international court, but with a narrow remit. We were there to train lawyers from other jurisdictions, but we also learned much ourselves. Justice Louise Arbour, the court's Chief Prosecutor, hailed the weekend as a success. But her own experience in Kosovo the same weekend was not as fruitful, as her authority was insufficient to persuade Serbian officials who appeared to be determined to deny the right of the international rule of law.
But, generally, this court is proving successful. The prosecutors we met were realistic individuals who are determined to give the rule of international law a good name. What they want is a permanent court to prosecute those who commit genocide wherever it occurs. In the meantime, the nations who shrink from the final step of giving the Rome statute real force are effectively ruining any chance of bringing to justice those responsible for genocide.
Closer to home, the Pinochet debacle (the rehearing is set to end this week) would have been entirely unnecessary if there had been a permanent criminal court. If Chile had failed to prosecute, the statute would have permitted international intervention. The general could have been tried already. Instead, decades on, we have a challenge in the English courts, by the Spanish government with other interested nations each seeking justice for their wronged citizens.
The issue of human rights affects us all. Last year, the Prime Minister said that the Human Rights Act established "a firm foundation - and not a ceiling - for human rights". And surely the ceiling and roof above that edifice should be a permanent court which, by its statute, recognises all those instruments that underpin human rights and freedoms adopted by the international community in the last 50 years?
A humbling message was delivered last December when another party of barristers went to Bangladesh, one of the poorest countries in the world. So, it was with some justification that one of their distinguished Law Commissioners, Justice Naimuddin Ahmed, asked us all: "Can those great peoples who are the architects of nearly 100 human rights instruments postpone space exploration, nuclear tests and the manufacture of nuclear weapons, and divert their resources from these ventures until those instruments really become meaningful?"
Bruce Houlder QC is chairman of the public affairs committee of the Bar CouncilReuse content