Bad People

the African Union, from which position he was able to lobby against the ICC and to encourage a safe passage through Africa of al-Bashir, after he was indicted for genocide in Darfur.
But Gaddafi’s behaviour was so atrocious that by 2011 he had no powerful friends left – his crazed ramblings at the UN were an excruciating embarrassment to all the other world leaders. When ‘Arab Spring’ protests broke out in Libya in 2011, he ordered troops to march to liquidate the ‘rats’ of Benghazi in order to ‘purify all decisions from these cockroaches’.6 It cannot be doubted that they would have done so had NATO not commenced its attacks. His overthrow (if not his death) was a classic example of how the international community has a ‘responsibility to protect’. That is precisely what startled Russia and China, and they seem to have learnt from it never to cast their votes (or even their abstention) again so as to favour any reference to the ICC.
THE ICC IS VETOED
The problem of ICC vetoes became clear from the fate – in fact, the lack of it – of President Assad of Syria. In the immediate aftermath of resolutions 1970 and 1973, and demanding the benefit of an international justice that actually seemed to exist, protesters took to the streets of Damascus, with those banners demanding ‘al-Assad to The Hague’. Over that year, Assad had thousands of them gunned down and suffered no reprisal. Eight years later, after attacks on his people by an army that killed them with machine guns, tanks and sometimes poison gas, the death toll was estimated to be over 400,000 (with millions more driven to seek refuge abroad) but the UN Security Council had done absolutely nothing. Russia needed Assad to guarantee its navy access to their Syrian seaport on the Mediterranean, and it threatened to veto any move (one was made in 2016 by the UK) to refer the Assad regime to the ICC. Assad’s wife, a privately educated English woman, has continued to order from expensive Paris couturiers throughout his murderous rule, which has now wrested back control of the country from Western-supported rebels as well as from ISIS. Although human rights groups have amassed evidence of his regime’s crimes against humanity, there is no court to which they could take it – Syria has not ratified the ICC treaty, so its jurisdiction could only be triggered by a Security Council referral, forever stymied by the Russian veto. The lesson of Assad’s impunity is that international justice will never be visited upon the leaders of a country which has the support of one of the five Security Council superpowers, whether through political alliances or strategic advantages or agreements to exploit natural resources.
This means the ICC has notably failed to convict any state political leader – its main targets have been rebel warlords with brutal militias in central Africa. In the post-Gaddafi period, the ICC has

UN Security Council unanimously, if unwittingly, authorised a regime change in Libya. It did not do so in terms, of course, but Resolution 1970 imposed an arms embargo, a travel ban on Libya’s most powerful state officials and a freeze on the oil-rich assets of Colonel Muammar Gaddafi and his sons. Then, momentously, the Security Council referred the situation in Libya to the ICC prosecutor, with the support of Russia, China and the United States. This was historic because it was the first time (and, sadly, may be the last) that the ‘big five’ agreed to an ICC reference (in the case of Darfur, although the United States had proposed it, the US abstained on the vote, as of course did China and Russia – it was carried by the votes of the UK and France, and the non-permanent members). A few weeks later, as Gaddafi ignored the UN and his troops advanced on Benghazi, the Security Council (this time with China and Russia abstaining but not vetoing) passed Resolution 1973 authorising member states operating through NATO ‘to take all necessary measures to protect citizens under threat of attack’.
As Gaddafi’s vengeful troops closed in on Benghazi, it became evident that the measure necessary – indeed essential – to protect Libya’s citizens was to remove the dictator. The resolution gave no explicit mandate to use force, but President Obama, British Prime Minister David Cameron and French President Nicolas Sarkozy issued a joint statement: ‘Colonel Gaddafi must go, and go for good.’5 It was an invitation to tyrannicide. A NATO jet struck a convoy in which Gaddafi was travelling, and a group of rebels found him cowering in a roadside tunnel. They beat him, threw him across the bonnet of his jeep, and rammed an iron pipe through his sphincter. ‘What you are doing is not permitted’ were his last words before they shot him in the head.
The crimes of Colonel Gaddafi are far too many to list. Since assuming dictatorial powers in Libya in 1969, he had directed the assassination of ‘stray dogs’ – his opponents – wherever in the world they resided. He set up training camps for terrorist movements, from the Baader–Meinhof gang to the Palestinian Abu Nidal Organization, and his oil wealth bought the Semtex that he donated to the IRA, which was then used to blow up Lord Mountbatten and for other atrocities. He provided training for Charles Taylor and Foday Sankoh before their depredations in Sierra Leone, and his intelligence services blew up two jets loaded with passengers – the Pan Am flight over Lockerbie and an Air France plane over Niger. His greatest crime against humanity in Libya came in 1996, when he and his intelligence chief (his brother-in-law, Abdullah al-Senussi) arranged the slaughter of 1,276 prisoners, mainly political dissidents, at Tripoli’s Abu Salim prison. Gaddafi got away with all of these murders because of his wealth and his African political alliances – in 2009 he was, to its disgrace, elected as chairman of

by threatening to punish their perpetrators.
THE ICC
This delusion was bolstered by the establishment of the International Criminal Court in 2002, to which most states in the world adhered. The George W. Bush administration, although adamant that the court should never indict an American, asked the Security Council to put Sudanese President Omar al-Bashir in its dock for directing genocide in Darfur. The court was invited by a number of African countries to investigate human rights atrocities, in Uganda (committed by the Lord’s Resistance Army) and in Kenya, where it accused leading politicians of authorising excessive force which led to the deaths of 1,300 demonstrators during the 2008 elections. Unlike al-Bashir, the Kenyan leaders cooperated and respectfully attended the court in The Hague to seek and be granted bail. The human rights movement, encouraged by these developments, moved on to urge that UN members had a ‘responsibility to protect’ (R2P) the citizens of states that could not or would not protect them from large-scale loss of life caused by crimes against humanity. This responsibility was to be exercised by ‘humanitarian interventions’, inevitably military interventions, ‘in conscience-shocking situations crying out for action’, such as the ethnic cleansing which induced NATO to bomb Milošević’s forces in Kosovo.4 But this notion could not survive the Bush–Blair invasion of Iraq without Security Council support, and when R2P was adopted by the UN in 2005, its definition was weakened by being made to depend on a determination by the Security Council (i.e. by unanimity among the five veto-wielding powers).
Nonetheless, the first decade of the twenty-first century gave many reasons to hope that international criminal justice would make the world a safer place. The 2000–01 Lockerbie tribunal, of Scottish judges sitting in the Netherlands, convicted a Libyan intelligence officer of blowing up Pan Am Flight 103, killing 259 passengers and crew and eleven residents of the town. In the same year, Slobodan Milošević was handed over for trial in The Hague; and in 2002 the UN set up its court to try war crimes in Sierra Leone and the ICC commenced work.
In 2005 the Security Council referred the Darfur situation to the ICC, which had its first defendant in 2008 when Democratic Republic of Congo warlord Thomas Lubanga was put on trial, just as Charles Taylor was returned to Sierra Leone to face justice. Then Radovan Karadžić was captured, and two years later a UN-backed court in Cambodia sentenced the chief jailer of the Khmer Rouge to thirty-five years in prison for the torture and killing of tens of thousands of his prisoners. As 2010 drew to a close, the Arab Spring had its beginning with the ‘Jasmine Revolution’ in Tunisia.
But 2011 was the true annus mirabilis, when for the first time the

Thing’ (which lived down to its name) and the widespread recruitment of child soldiers.
These ad hoc courts were expensive to run and the priorities of their prosecutors sometimes dismayed diplomats, who found fair trials lengthy and sometimes embarrassing and preferred to give amnesties to war criminals. Nonetheless, by and large the record of these courts was good: they convicted most defendants of war crimes and crimes against humanity, but acquitted a sufficient amount of suspects for the judges to display independence and a degree of impartiality. They eschewed the death penalty, but put vicious powermongers away in prison for many years, giving some satisfaction to victims and families. By the turn into the twentieth century, there was agreement that such courts had proved sufficiently valuable to be morphed into an International Criminal Court, its statute having been agreed at a UN conference in Rome in 1998.
This impression, that international human rights law would become a force in the world, was assisted by the case of General Pinochet, the former Chilean dictator who came to London in 1998 for an operation on his back. He managed to take tea (it was in fact whisky) with Mrs Thatcher before being seized by Scotland Yard from his hospital bed on a warrant from Spain, where a magistrate sought to put him on trial for torture. The UK government came under enormous pressure to release him, from former President George H. W. Bush and Dr Henry Kissinger, the Pope and the Pope-in-waiting (Cardinal Ratzinger) and even from Pinochet’s sworn enemy Fidel Castro, who denounced the arrest as an insult to the dignity of Latin American leaders. But the British government stayed steadfast to the rule of law, placing Pinochet under house arrest for eighteen months while the case wended its way through the British courts. The judges in the House of Lords held that because Britain and Chile had ratified the UN Convention against Torture, Pinochet could not claim immunity from trial in Spain and hence could be extradited there to face justice. Despite this momentous decision, the Home Secretary Jack Straw (showing a mercy that Pinochet never extended to his victims) allowed him to return to Chile because medical tests had apparently revealed that he was not mentally fit to stand trial.
The ‘Pinochet precedent’ was, however, a warning to despots everywhere and a boon to the human rights movement. Pinochet had been a major target because of his unrepentant use of torture: he allowed it to come to public knowledge in order to intimidate his enemies. The case was an international sensation – John Howard, Prime Minister of Australia at the time, complained: ‘They did not teach me at law school that this could happen.’ That it could gave the human rights movement a reason to think that an international court would in the future provide the vehicle for deterring atrocities

signatories, but these were not signed by states which behaved in a way that would justify many complaints.
Another new world order began early in the 1990s, after the collapse of the Soviet Union and the seizure of independence by its Warsaw Pact satellites in eastern Europe. The Cold War ended and the new Russia soon sank into the drunken corruption of the Boris Yeltsin era, when a rising clan of oligarchs (several of them former KGB colonels) stole its public assets. The United States and its allies were in the ascendant, and with ‘whack a mole’ superiority they drove Saddam Hussein out of Kuwait, which he had unlawfully invaded, and empowered the UN to go about settling the civil war in the Balkans that had broken out between Serbia, Croatia and Bosnia–Herzegovina. This at first proved too difficult: by 1993 the world was horrified by television images of the shelling of historical cities, such as Dubrovnik and Sarajevo. Diplomacy failed, and the UN’s blue-helmeted peacekeepers had no peace to keep. They were replaced by NATO forces, which were reluctant to suffer casualties. Something had to be done about the demagogue Slobodan Milošević, the Bosnian-Serb Ratko Mladić and Radovan Karadžić, the poet turned perpetrator of genocide.
A RETURN TO NUREMBERG
At this point, almost as a fig leaf to hide its failure, the UN grasped for the Nuremberg precedent and decided there could be no peace without justice. The Security Council set up a clumsily named court – the International Criminal Tribunal for the former Yugoslavia (ICTY) – in The Hague in 1993. It was well received by the world’s media, and so the next year another court was set up to punish the perpetrators of that year’s genocide in Rwanda, where the Hutu majority had with unbridled hate and savagery massacred approximately 800,000 people of the Tutsi minority before being defeated by forces led by Paul Kagame. Neither Rwanda nor the broken pieces of the former Yugoslavia held much interest for Russia and China, so both superpowers, in the spirit of the time, agreed and even sent judges to these new international courts to punish those found guilty of war crimes and crimes against humanity.
The courts took their time – the notion of due process had changed since Nuremberg, and the defendants had to be given better rights to representation and to appeal. The delays were exacerbated by NATO’s reluctance to cooperate – its spokesperson actually said that arresting Milošević ‘was not worth the life of one NATO soldier’. But he was eventually arrested, as the result of a political deal, along with 160 others from all sides, who were accused of committing or ordering atrocities.
Meanwhile, in Sierra Leone the UN had set up a war crimes court, which eventually arrested and convicted Charles Taylor, along with other local commanders who had ordered ‘Operation No Living

Western Chiang Kai-shek – Mao Zedong had not yet achieved power – and Japan was occupied by the US.
The United Nations Charter was fairly amicably agreed, at Dumbarton Oaks and San Francisco, with its first objective being that of achieving international cooperation ‘in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language and religion’.3 A committee chaired by Eleanor Roosevelt set to work, supplied with daily transcripts of evidence from the trial at Nuremberg, and drafted the Universal Declaration of Human Rights which was adopted by the UN in December 1948, together with the Genocide Convention and (a few months later) the Geneva Conventions, which required humane treatment for prisoners of war. This was the great, post-war triptych of human rights. The celebration of the universal declaration, harbinger of the new world order, was spoilt only by the Soviet Foreign Minister Andrei Vyshinsky (formerly state prosecutor of Stalin’s monstrous show trials), who described it as ‘just a collection of pious phrases’. The Berlin Airlift – necessary because Stalin was blockading West Berlin and starving its inhabitants – had just begun. And soon after, the Cold War.
For the next forty years, the world – and the member states of the United Nations – were divided into two blocs, one led by the United States and the other by the Soviet Union. There was an arms race, with both sides accumulating vast arsenals of nuclear weapons which could have been used by America in the Korean War or against it during the Cuban Missile Crisis. The US gave the world a lesson in the persecution of intellectuals during the McCarthy period and in breaches of the UN Charter by overthrowing nascent democracy in Iran (with the UK’s help) and by going to war against Vietnam, while the Soviets invaded Hungary and Czechoslovakia and communist puppet leaders held unjust show trials throughout eastern Europe. There was genocide committed by Pakistan’s army in Bangladesh, and by nationalists in Indonesia (against its Chinese population). Crimes against humanity were committed in Iran (the mass murder of thousands of prisoners by the Ayatollah in 1988), in Iraq (Saddam Hussein’s gassing of the Kurds at Halabja and his invasion of Kuwait) and in General Pinochet’s torture chambers in Chile and under ‘Operation Condor’ – the death squads that ranged through Latin America, abducting and killing leftists. Then came the shootings in Tiananmen Square – China’s debut in the international-level atrocity league.
There was, of course, little accountability for these crimes. There was a good deal of paper on which human rights conventions – against torture and apartheid and racism and genocide – were written and agreed, and then ignored. Some of them had optional protocols allowing individuals to complain against state signato

imprisonment but by loss of money and reputation, can be described as offering a Plan B for human rights.
Important progress came in December 2020, with the European Union announcing plans for a targeted sanctions regime to exclude from its borders banks, businesses and foreigners involved in human rights abuses, and with an Australian parliamentary inquiry recommending that this country too should have a Magnitsky law. By the beginning of 2021, in an inchoate and un-orchestrated way, a number of advanced democracies are turning towards national laws as a means of making up for the failures of the UN and the difficulties that its courts, commissioners, tribunals and rapporteurs have encountered in enforcing international human rights law.
NEW WORLD ORDERS
The advent of Magnitsky laws may signal the alignment of ‘parliamentary peoples’ called for by the great English author H. G. Wells – those nations that should unite to secure civil rights in their own countries and, by force of example (but not by force), in authoritarian states. The mistake, Wells argued in 1939, that had been made by Woodrow Wilson in establishing the League of Nations in 1920 was that it had no commitment to human rights, and in a world concussed by war casualties, pandemic (the Spanish flu) and impending financial collapse in the Depression, it had proved powerless to prevent Japanese annexation of parts of China, the Italian invasion of Libya, Joseph Stalin’s mass-murdering tyranny or Hitler’s advance towards the Holocaust (when criticised by a League Commission for a law discriminating against Jews in 1933, Hitler simply pulled Germany out of the entire organisation).
What Wells advocated in his influential Penguin special, The Rights of Man, was that the war against fascism must end with the replacement of the League of Nations by a permanent alliance of democracies committed to ‘a new world order’ founded on a binding convention of human rights, which authoritarian countries would not be allowed to join.2 The book inspired Franklin D. Roosevelt’s famous appeal in 1941 for a world based upon four fundamental freedoms (freedom of speech and worship, freedom from want and fear) and he signed the Atlantic Charter with Winston Churchill, declaring Allied commitment to universal human rights as the main objective in fighting the war. But the body that would take this forward – soon called the United Nations – was not confined to ‘parliamentary peoples’ or to nations which shared the same – or any – values.
There was never any question at the end of the Second World War that the Soviet Union must be a founder member of the body to which the ‘big three’, Churchill, Roosevelt and Stalin, had committed during their 1945 meeting at Yalta – its sacrifices had been greatest. As for China, it was at the time represented by the pro-

have provoked Putin’s rage, was the fact that the law had the power of the US state behind it: the principles of non-binding international human rights law were now embodied in binding national legislation. It applied only to those involved in Magnitsky’s torture and death and to Russians whose gross violation of human rights took the form of lethal reprisals against other whistle-blowers. But the sanctions at least had the strength of national law and, unlike sanctions proposed in the UN Security Council, they could not be vetoed by Russia.
Targeted sanctions were extended by President Obama in 2016 with the Global Magnitsky Human Rights Accountability Act, which reached beyond Russia to persons and corporations of any nationality and to officials of any government guilty of significant corruption. Canada followed in 2017, with its own version: the Justice for Victims of Corrupt Foreign Officials Act, which additionally placed reporting obligations on banks and other financial institutions and prohibited all dealings by Canadian companies with listed individuals on pain of prosecution. The UK resisted recommendations for such legislation until the Salisbury poisonings by Russian agents in March 2018: it added a ‘Magnitsky amendment’ to its 2018 Sanctions and Anti-Money Laundering Act, which came into force in July 2020 and enables the freezing of assets held in Britain by foreign human rights abusers. Sergei Magnitsky’s wife and mother, together with Bill Browder, watched from the Foreign Office (Covid-19 prevented access to the gallery in the Houses of Parliament) while the Foreign Secretary Dominic Raab declared that the first targets would be the Russian officials implicated in Magnitsky’s death.
Although by the time of the Helsinki Summit in 2018 between President Putin and President Trump the notion of targeted sanctions had extended well beyond its original targets of Russian officials, Putin maintained his rage: he demanded that Browder be surrendered to the authorities in return for allowing the FBI to interrogate the Russians indicted by Special Counsel Robert Mueller. Singling out Browder as his number one enemy was an extraordinary tribute to Browder’s indefatigable work to commemorate his tax lawyer, and an ironic recognition of the danger that this new human rights tool might pose to officials of autocratic governments. For that reason alone, a new human rights regime dependent not on international but on national law, providing deterrence not by im