?Racism, we know what it is. We bow our heads before the martyrdom of the children of Izieu, because we remember the suffering of the children of Algeria?.

Defending Klaus Barbie before the Cour d'Assises du Rh?ne in May 1987, defence lawyer Jacques Verg?s adopted a strategy of rupture. Barbie, the head of the Gestapo in Lyon between 1942 and 1944, was charged with crimes against humanity for ordering thousands to be executed or deported to death camps, including 44 Jewish children from an orphanage known as la Maison d'Izieu. The defence focused, not on exculpating or excusing Barbie, but on attacking the hypocrisy of France in prosecuting Barbie for crimes which had characterised France's brutal conduct of its colonial wars, notably the Algerian War (1954-1962). 

While ?tu quoque? (you also) affords no defence in law, it presents a powerful challenge to the legitimacy of proceedings. The rule of law requires equality before the law, and selectivity in the law's application will necessarily invite the critique that it is being used as a tool to serve the interests of the powerful. 

That critique remains alive today.

Charles Taylor 

In February, the defence in the trial of Charles Taylor, the erstwhile president of Liberia, charged with terrorising the civilian population of Sierra Leone, said, in closing arguments before the Special Court for Sierra Leone (SCSL):?This case raises directly the question of whether the judicial process can be fashioned into a political tool for use by powerful nations to remove democratically elected leaders of other nations that refuse to serve as their handmaidens and footstools?.  Taylor, it was observed, had gone from being a friend and ally of the United States, to being viewed as a threat to US national security. Leaked diplomatic cables revealed the desire on behalf of a US ambassador ?to see to it that Taylor is put away for a long time?.

Courtney Griffiths QC, having highlighted the closeness, both financially and in terms of personnel, between the US government and the SCSL prosecutor, made this bold submission:  ?The tribunals which are but an instrument of diplomacy in the hands of powerful states are, in fact, not administering law at all but, instead, providing spurious cover for their paymasters, thereby prostituting the legal process?. 

We await the court's judgment. 

Libya

If Colonel Gaddafi had ended up before the International Criminal Court, rather than killed, he might have voiced similar sentiments. Like Taylor, Gaddafi suffered from a change in winds of Western foreign policy. As Amnesty International observed: ?Governments that had not long ago ignored the Libyan government's appalling human rights record to seek its collaboration in the control of migration and counter-terrorism and to exploit lucrative business opportunities in the country, suddenly turned on it, damning its human rights record and in some cases recognising the National Transitional Council as the sole government authority in Libya?.

However, the Security Council resolution 1970 referred the situation in Libya to the International Criminal Court, not an individual. Notwithstanding Gaddafi's death, the challenges for the ICC will be to ensure that its investigation in Libya is not, and is not perceived to be, manipulated to provide ex post facto justification of a Western military intervention; and to establish accountability for crimes committed by all parties to the conflict. 

Defending himself before the International Criminal Tribunal for the former Yugoslavia (ICTY) in August 2004, Slobodan Milosevic complained that ?crimes against Serbs are being committed in Kosovo with the full assistance of the NATO-led coalition, fully trampling upon resolution 1244 of the Security Council which codified the terms of the cease-fire that were offered to Yugoslavia?.

Last year, acquittals of leading figures of the Kosovo Liberation Army were quashed following a finding by the Appeals Chamber of the ICTY that witness intimidation ?permeated the trial?. They are presently being re-tried. 

The International Criminal Tribunal for Rwanda fared worse; no allegations of crimes committed by the Rwandan Patriotic Front (RPF) were tried by the ICTR, and it is said that chief prosecutor Carla del Ponte was removed from her post as a result of political pressure following her announcement in 2003 that she had sufficient evidence to prosecute members of the RPF.

Baha Mousa Inquiry 

Meanwhile, at home, the Baha Mousa Inquiry reported after three years.  

Over 1,300 pages, Sir William Gage addressed the events of 14-15 September 2003, when a 26-yearold Iraqi was taken with others into British army custody following a raid on a hotel in Basra, hooded, forced to adopt stress positions, beaten, abused and eventually killed. 

The report analyses the responsibility of key personalities in contributing to the mistreatment that led to Baha Mousa's death. The report also ?sought to understand? why conditioning techniques which had been banned by the UK government in 1972 by Edward Heath, had come to be used in Iraq and ?why the use of these processes was not recognised by all concerned as unjustified and wrong?. It concluded that knowledge of the ban ?had largely been lost? and attributed this to ?corporate failure? of the Ministry of Defence. Sir William concluded with 73 recommendations to the Ministry of Defence.

The episode illustrates the different texture of accountability, domestically and internationally. Of those responsible for Baha Mousa's death only one, Corporal Payne, has been convicted of war crimes, having pleaded guilty at his court-martial; others were not charged, or acquitted at trial. 

Kenya

Another illustration of differing standards of accountability arises from Kenya. As Kenyan politicians stand trial before the ICC for crimes arising from post-election violence of 2007, a group of elderly Kenyans are suing the UK government in the High Court for physical mistreatment including torture, rape, castration and severe beatings, inflicted on them during the Mau Mau emergency of 1954-1959. 

In Mutua et al v FCO, McCombe J dismissed the government's application to strike out the claim. An expert witness on behalf of the claimants described the government's defence as supporting ?a debunked thesis that the British colonial brutalities perpetrated during the Mau Mau emergency were the result of one-offs, rather than any kind of systematic effort authorised at the highest levels of British colonial governance?.

In considering the responsibility of the UK government for torts committed by the employees and agents of the British colonial administration in Kenya, McCombe J noted a useful historical parallel in the policy directives of the Wannsee conference of senior Nazi officials in January 1942: ?There could surely be little doubt that the prime movers at the 1942 conference would have been personally
liable to their victims, for systematic torture, under an English law of tort?. 

In a footnote to his judgment, he went on: ?I must admit to personal surprise and regret, wherever legal liability may lie, that one reads about what happened in this British colony so soon after the lessons of that historical parallel ought to have been well learnt?.

This article was first published in theNovember 2011 edition of the LCCSA's The London Advocate.  Nathan Rasiah is a barrister at 23 Essex Street.  

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