East West Street, Martin McGuinness and the sanctity of the rule of law

It’s been a week that has caused me to revisit some long-held certainties.

I’m not referring to the attack on Westminster. An incident of this kind was entirely predictable, just as was its exploitation for political purposes by various ne’er-do-wells. It was not the first, and it will not be the last. I would have said the same in the 1970s as each IRA atrocity unfolded.

Two other events led me to spend an inordinate amount of time thinking about whether we can truly say that we’re governed by the rule of law in the face of apparent evidence to the contrary.

On Sunday morning I went to a lecture in London by Phillipe Sands. He was speaking about his book, East West Street. If you’re not familiar with it, here’s a brief review that I wrote few months ago:

A deeply moving account by Phillipe Sands, an eminent barrister and professor of law, who pieces together the history of his Jewish family from their origins in Lemburg (also known as Lvov and latterly Lviv). He intertwines the lives of four men and their families. Three of them lived few streets away from each other: his maternal grandfather, Leon Bucholtz, along with Hersch Lauterpacht and Raphael Lemkin. The latter two were lawyers who subsequently had a profound influence on the development of international law. The fourth person was Hans Frank, Hitler’s viceroy in Poland and the other occupied territories in the East.

As a member of the team of lawyers preparing for the Nuremberg trials of the Nazi leadership, Lauterpacht created the concept of crimes against humanity. Lemkin first coined the term genocide. Although Lemkin’s concept was not universally accepted by the four powers represented at Nuremberg (for fear that the term being used to describe earlier historical events of which the victors were not proud) the two lawyers were authors of two enduring planks of international law, even though they didn’t see eye to eye on the details. Lauterpacht was focused on crimes in terms of their effects on individuals. Lemkin believed that prosecutions for war crimes should be conducted on the basis of crimes against groups.

In Sands’ narrative, all roads led to Nuremburg. For Frank, the trial ended with the death sentence. At the time of the trials neither lawyer was aware of the fate of their extended families and Frank’s part in it. Only subsequently did they and Leon Bucholtz discover that their loved ones were among more than two thousand residents of nearby Zolkiev who rounded up, shot and buried in a forest outside the town. Other family members ended up at the Treblinka death camp.

When we talk blithely about a world turned upside down in the wake of Trump’s election, we should read this book and consider the fate of Lemburg/Lviv/Lvov, a city that over thirty years ended up by treaty or through invasion within the borders of three separate states, and whose population suffered endless turmoil.

You don’t have to be Jewish and to have been robbed of a normal family history to appreciate the legacy of Lemkin and Lauterpacht. Thanks in large part to the work of two outstanding lawyers, tyrants, warlords and their foot-soldiers know that today there is an International Criminal Court waiting for the opportunity to reward them for their efforts.

Although East West Street is an invaluable primer of the origins of international criminal law, in essence it’s a book about individuals and their stories, eloquently told by an author who has through his work encountered more than his fair share of inhumanity. To that extent, you sense that Lauterpacht, with his emphasis on the individual, is the greater influence on Sands as he weaves together the strands of human tragedy and survival in this impressive and compassionate book.

Listening to Mr Sands speak for an hour – in complete sentences as lawyers do – didn’t add significantly to what he had written in the book, but it did convince me that I was in the presence of an impressive and compassionate man.

I would have liked to have asked him one or two questions, but I rarely hold my hand up in such gatherings. I’m what Daniel Kahneman refers to as a slow thinker. Unless I’m well-versed in a subject, I like to reflect for a while before speaking, and in that forum – where the majority of those who did speak up seemed more interested in expressing their views than on getting Mr Sands to elaborate on his – I had nothing to offer on the spur of the moment.

But the effect of the talk was that in the subsequent few days I’ve thought of little other than war crimes, crimes against humanity and genocide.

I might have asked him where you draw the line in deciding to prosecute for genocide. How large does the targeted group have to be? Also, what was the rationale in excluding actions against political groups from most definitions of genocide?

More specifically, what of the Burmese persecution of the Rohingya? Does that amount to genocide? If so, does it make it less likely that a prosecution of Aung San Su Kyi might succeed because she is a Nobel Peace Prize winner? Or might it be that she lacks the power over her partners in government? But as a member of that government, is she culpable in failing to speak up, and failing to try to restrain those who do have the power?

Concerning war crimes, do you have to be on the losing side to be prosecuted? Which begs the question of whether the International Criminal Court is truly an independent body, or subject to the political sensibilities of those nations that have the power to bring alleged perpetrators to justice?

And I would have been interested to know whether Mr Sands believes that people trafficking and other violation of human rights constitute crimes against humanity? And what of female genital mutilation?

I have a fair idea that he would describe the International Criminal Court as a work in progress – that successful prosecutions are the art of the possible. He might also say that laws are written by people, and reflect the imperfections of humanity. And to those who argue that they’re written by God, he might comment that they still need to be interpreted – often imperfectly – by humans.

But far be it for me to put words in his mouth. No doubt he would have some more deeply considered opinions.

Then came the second event – the death of Martin McGuinness. A man never brought to trial for his activities as an IRA commander. Deliberately, so it seems, because the British government of the time apparently felt that he had leadership qualities that would be essential if a peace deal were to be reached in Northern Ireland.

So did the government suspend the rule of law in McGuinness’s case? And what of the lives the IRA took, including the twenty-one people on a night out in a couple of Birmingham pubs – an event that happened in my home town? Would Mr Sands argue that their killing – and those at Warrington, Enniskillen and the Baltic Exchange – amounted to a crime against humanity?

When, in fact, is it allowable to subordinate justice to a greater political good – as appeared to be the case when under the Good Friday Agreement murderers were allowed to serve shortened sentences?

Since McGuinness’s death, the great and the good have lined up to praise his contribution to the peace process, while some also took care to remember his earlier deeds.

Of all the quoted reactions, the most heartfelt arguably came from Norman Tebbit, the politician whose wife was crippled by the Brighton bomb during the 1988 Conservative Party Conference, and who was badly injured himself. He said: “He claimed to be a Roman Catholic. I hope that his beliefs turn out to be true and he’ll be parked in a particularly hot and unpleasant corner of Hell for the rest of eternity.” A howl of anguish and fury if ever there was one.

The moral dilemmas around the treatment of those who have been complicit in terrible crimes did not start and will not end with McGuinness. What respect for justice did the victorious allies show when they spirited some useful war criminals out of Germany in 1945? Was it right that the worst oppressors of the apartheid regime in South Africa were forgiven their crimes through the Truth and Reconciliation process? Were the US and Britain wrong, as Pakistan once claimed, to decapitate the Taliban leadership, thereby eliminating those with sufficient stature to negotiate a peace agreement? Should we be talking to “Caliph” Baghdadi of ISIS as part of an effort to end the conflict in Syria and Iraq? Or with the murderous Kim Jong Un in order to neutralise North Korea’s nuclear capability?

A notable absentee from Martin McGuinness’s funeral was Tony Blair, one of the main architects of the Northern Ireland peace process. His misfortune was that his political trajectory went the opposite way to that of the former IRA commander. If his career in government had ended before he took Britain to war in 2003, he would now be one of our most respected former Prime Ministers, mainly remembered for the Good Friday Agreement and his positive interventions in Sierra Leone and Kosovo. As it is, since the Iraq war he has been dogged by accusations ranging from bad faith to war crimes. Does he deserve to be excoriated while McGuinness is escorted to his grave with plaudits from his former enemies?

All of which reminds me that the rule of law, that cherished foundation upon which we are told liberal democracies are built, is to an extent a fictional device. It bends under the influence of power and expediency. Which is why we need lawyers like Phillipe Sands, who operates in the realm of the possible, yet in East West Street also gives voice to the victims who found their own ways to deal with the injustices visited on them both collectively and individually.

Justice is not blind, and the rule of law is not sacred, it seems, even in those countries that boast most loudly about their high moral standards. And sadly the victims with perhaps the most cause to howl cannot do so. Because they’re gone. The rest of us, victims or not, carry on and hope for better days.