Lord Steyn and the Rule of Law

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Lord Steyn and the Rule of Law

War Crimes and Lawlessness on a Truly Grand Scale

Lord Steyn is one of Britain’s most senior judges. In his interview with Jon Snow on Channel 4 News he vehemently condemns the widespread lawlessness of the US and Britain and intimates that in his view both administrations could well be guilty of war crimes on the basis of international law established after the defeat of fascism in World War Two. In 2003, and since, he has condemned the US's Guantánamo Bay prison camp, calling the imprisonment of "terrorist suspects" there a "monstrous failure of justice" that constitutes "utter lawlessness". This was reported at the time as breaking with the convention that law lords do not speak out on politically sensitive issues. Lord Steyn’s stand has been that judges "have the duty, in times of crisis, to guard against an unprincipled and exorbitant" government response. [For the full text of Lord Steyn’s November 2003 speech, Guantánamo Bay: The Legal Black Hole, see Year 2003 No. 119, December 11, 2003.]

In October this year, Lord Steyn in an interview on Panorama, condemned the government’s plans to detain "terrorist suspects" for up to 90 days as incompatible with the European Convention on Human Rights. "Experience shows that governments frequently ask for more powers than they need, and when they get those powers they abuse them from time to time," he said. Early, before the July 7 bombings, he had accused the British and US governments of whipping up public fear of terrorism, and of being determined "to bend established international law to their will and to undermine its essential structures".

Lord Steyn has condemned military action in Iraq, saying the government had been "driven to scrape the bottom of the legal barrel" to find justification in law for it. He added, "After the dreadful bombings in London, we were asked to believe that the Iraq war did not make London and the world a more dangerous place. Surely, on top of everything else, we do not have to listen to a fairy tale."

Furthermore, Lord Steyn has referred to the huge wave of legislation on criminal justice (since Labour came to power there have been 12 criminal justice acts) in these terms: "Year after year, half-baked ideas are adopted in haste, puffed up to be the ideal solution and routinely abandoned a year later. The quality of much of the legislation has been described by text-book writers as scandalous. So, to the bewilderment of the public and judges, the position in regard to criminal justice continues from year to year. It is a little unfair to blame it on the judges, as politicians so frequently do."

Lord Steyn has remarked that it was wrong for the Prime Minister to have called the rule of law a "game". He said, "The maintenance of the rule of law is not a game. It is about access to justice, fundamental human rights and democratic values." He continued, "One knows, of course, that the Government earnestly desires a closure on this issue [Iraq]. But that is not possible: while there are different views on this occasion, even Mr Walter Wolfgang would be free to express the opinion for which he was charged under the Terrorism Act. Possibly his name will live on when the names of some now in charge of affairs are forgotten."

In November last year, Lord Steyn in a lecture said that it was the "democratic and constitutional duty of judges to stand up where necessary for individuals against the Government". "If the judges of today teach a new generation of lawyers, and judges, that complaisance by the judiciary to the views of the legislature and the executive in policy areas is the best way forward, one of the pillars of our democracy will have been weakened. In troubled times there is an ever present danger of the seductive but misconceived judicial mindset that 'after all, we are on the same side as the Government'." He said, "The detention of prisoners at Guantanamo Bay has one single object: the United States administration wanted to place them beyond the protection of the rule of law. They created a hellhole of utter lawlessness where the prisoners are at the mercy of the American army, of which the President is, in law and in fact, the Commander in Chief.''

Lord Steyn was forced to step down last year from the panel of judges hearing the challenge to the lawfulness of detention without trial for foreign terrorist suspects after the government took exception to earlier remarks he had made on the subject. Last December the law lords ruled by 8-1 that the detention without trial of foreign nationals in Belmarsh and Woodhill prisons and the Broadmoor high security hospital breached human rights laws. He was giving the keynote address to an audience of judges and lawyers at the annual meeting in central London of the British Institute of International and Comparative Law, whose chairman is Lord Bingham, the senior law lord. His remarks in June came after a report from the Council of Europe's committee for the prevention of torture, which concluded that the treatment of some detainees "could be considered as amounting to inhuman and degrading treatment". [For the full text of this address, click Laying the Foundations of human rights Law in the United Kingdom.]

The session was chaired by the appeal court judge Dame Mary Arden. The audience included Lord Brown, another law lord, Judge Luzius Wildhaber, president of the European court of human rights in Strasbourg, Sir Franklin Berman QC, former legal adviser to the Foreign Office, and Elizabeth Wilmshurst, the deputy Foreign Office legal adviser who resigned over the attorney general's advice that the Iraq war was legal.

Lord Steyn said of the Belmarsh ruling: "Nobody doubts in any way the very real risk of international terrorism. But the Belmarsh decision came against the public fear whipped up by the governments of the United States and the United Kingdom since September 11 2001 and their determination to bend established international law to their will and to undermine its essential structures."

As far as he could ascertain, he said, the Belmarsh case was the first in which a government had sought, and managed, to change the composition of the panel of law lords due to hear a particular case.

The government, represented by the attorney general, argued that Lord Steyn should not sit on the case because, in a 2002 lecture, he had said: "In my view the suspension of article 5 of the European convention on human rights – which prevents arbitrary detention – so that people can be locked up without trial when there is no evidence on which they could be prosecuted is not in present circumstances justified."

It was "a matter of speculation", Lord Steyn has said, whether the challenge to his right to sit on the panel for the Belmarsh case had been motivated by his 2003 lecture.

It is important to remember that the judgments of the Nuremberg Tribunals and international law such as the UN Charter on Human Rights embodied the principles arising out of the defeat of nazi fascism and the utter lawlessness of the Hitlerites and exclusion from society and human rights to the point of genocide of "inferior" human beings. They were the legal embodiment of the defeat of the negation of everything human that fascism represented. It is in this context also that the government’s frustration with such judgment’s as that in the Belmarsh case must be seen, a frustration represented by Tony Blair’s outburst that legality must take account of the fact that "the rules of the game are changing". This outburst not only referred to the "war on terror" but to the so-called "new" types of crime such as "anti-social behaviour", which Tony Blair alleges cannot be tackled by the "rules of the game we have at the moment". In other words, there is no doubt that the government is seeking to impose an outrageous retrogression in the sphere of justice, as in other spheres, and the stand of Lord Steyn and other judges has been in response to this retrogression.

Lord Steyn was educated at the University of Stellenbosch, South Africa (BA law 1957, LLB Law 1957) and University College, Oxford (MA Law 1957). He commenced practice at the South African Bar in 1958 and was called to the English Bar in 1973, becoming Queens Counsel in 1979.

Lord Steyn was a Judge of the High Court, Queen's Bench Division from 1985-91, a member of the Supreme Court Rule Committee from 1985-89 and presiding Judge of the Northern Circuit from 1989-91. He was Lord Justice of Appeal from 1992-95 and a Law Lord from 1995-2005.

On retiring in September as a Law Lord, he was appointed as the new chairman of Justice, the other civil rights group. Other distinguished posts held by Lord Steyn include Chair of the Race Relations Committee of the Bar (1987-88) and President of the British Insurers Law Association from 1992-94.

Full transcript of Jon Snow's interview with law lord, Lord Steyn, December 6, 2005, Channel 4


Jon Snow Lord Steyn, when asked to talk about the whole question of torture, about rendition, the US Secretary of State said yesterday that the captured terrorists of the 21st Century do not fit easily into traditional system of criminal, military justice. Isn't it a reality that what is happening is a response to a kind of human behaviour that international law isn't used to having to deal with?

Lord Steyn It is undoubtedly from 9/11 onwards a new situation and modern terrorism involves far greater risks to the public. But, in my view, it is even more important now that one must stand by human rights law, respect the treaties. The need for them has not been lessened but increased.

Jon Snow The Americans are saying that European lives have been saved by carrying people from one place to another. They deny torture.

Lord Steyn I can't see that that is a proposition that can be sustained. Specifically when you refer to torture it is very important to know what is meant by torture. I'm speaking purely as a lawyer. The US administration has adopted a definition of torture which is extremely narrow. It involves causing death, total organ failure and so forth. The true definition is much wider and it includes coercive questioning.

Jon Snow Do you therefore think that in a way Guantanamo Bay is a template for what is happening?

Lord Steyn I think Guantanamo Bay is the clue to much of what we have seen unravelled even over this weekend. We have seen a scale of lawlessness unravel which in my opinion is the logical extension of Guantanamo Bay because Guantanamo Bay involved taking prisoners from Afghanistan, and many other places, to an island where there would be a lawless black hole where they can never escape from, where they have no right to trial. This logically is not very different from what the Americans call rendition which, in truth, is abduction. It is not authorised by international law and the connection between this and Guatanamo Bay is very close.

Jon Snow So you use the phrase lawlessness of states behaviour. A very strong phrase and when counterbalanced with, say, the scene in Israel yesterday when five civilians were killed by a suicide bomber who's the lawless party?

Lord Steyn Of course everybody condemns terrorism – it's a scourge, an outrage. But we do not improve the modern world or make it safer by adopting methods that have outraged a very large part of the world. They've outraged the devout Muslim world, the moderate Muslim world. It is just simply a fact that events for example like Abu Ghraib would have outraged moderate Muslims throughout the world.

Jon Snow Let's leave aside the question of torture which in a sense you've dealt with. Is it legal to move people around the world from one detention centre to another?

Lord Steyn It is undoubtedly not legal. One must go back to the Geneva Convention and the matter is governed by the Geneva Conventions and prisoners must be dealt with in accordance with the Geneva Conventions. And the Geneva Convention is not something you can opt into or opt out as you like. Those are binding conventions.

Jon Snow Don't you accept the American's view that these are not prisoners of war but merely illegal combatants?

Lord Steyn No. The argument that they are illegal combatants because they didn't wear uniforms is not one a court would find terribly impressive. So I wouldn't accept that. But in any event, if the Geneva Conventions are not binding then customary international law is of the same effect and the United States is undoubtedly bound by customary international law.

Jon Snow But you'd accept that there's obviously a conflict about whether this is legal or not. Even the British Government has gone some way to saying what is happening is legal.

Lord Steyn Well it is true that the British Government has said through the Defence Secretary that what the Americans are doing in Guantanamo Bay is legal but that is a very surprising thing for the British Government to have said. I have a copy here or what the Defence Secretary said. Mr Hoon said: 'There is no doubting the legality in the way these combatants have been imprisoned.' He added: 'There is no doubting the legality of the US to move them for trial.' That's at Guantanamo Bay. That's a very surprising thing for the British Government to have said and I'm not sure the British Government would want that to be repeated today.

Jon Snow But if your position is right, how is it that the international legal system has so totally failed when it comes to Guantanamo which is now nearly four years old?

Lord Steyn That is true of course. Guantanamo Bay went straight up to the US Supreme Court and the Supreme Court appeared to give decisions in favour of the detainees but a couple of months ago there was a decision to the effect that it was lawful to try these prisoners by military commissions on the island. And now the matter is going back to the US Supreme Court and we're all in limbo four years later.

Jon Snow The question of black sites, the question of not declaring where these people are being held – why is that not accepted by international law if the politicians in the system are saying; 'Look, this is defending innocent lives from assault by people who want to kill them'?

Lord Steyn The answer to that is relatively straightforward. International law consists of treaties and in this particular case the relevant treaties are the Geneva Conventions and they govern the position of people who are detained, and the detainees must be treated in accordance with that law. But that is buttressed, strengthened too, by customary international law which is largely to the same effect. Now that is binding law. That's not something someone can opt in or opt out as one chooses – it is binding law that binds the United States and it binds the United Kingdom Government.

Jon Snow But as things stand, it is law that is being broken in your terms. What is the cumulative effect then Guantanamo, of removal and of black sites?

Lord Steyn The cumulative effect of all these matters is lawlessness on a truly grand scale. It has the effect of giving a setback to international law, to humanitarian law – human rights law – for a very, very long time. And what was built up after the Second World War ensured an international rule of law. I'm specifically referring to Nuremberg, to the United Nations Charter, the Universal Declaration of Human Rights, the international covenants. I'm referring to things like Pinochet, the creation of the International Criminal Court, all those events are hugely damaged by what has been done here.

Jon Snow What about those countries that allow these things to happen?

Lord Steyn As far as that is concerned we can go back to Nuremberg. The person who tortures, who beats up prisoners can be guilty of torture depending on the level pain that is inflicted. But it doesn't end there. The person who authorises someone to do the beating may be guilty of torture and of a war crime. And what's more, somebody who set up a system calculated to cause such events to take place himself could be guilty of war crimes.

Jon Snow But the very concept of a war crime is an enormous statement. You are actually saying people who are doing this at the moment may be guilty of a war crime?

Lord Steyn If prisoners are tortured at Guantanamo Bay or at black sites – if they are – those who commit those acts will be guilty of war crimes, and those who authorise it can be similarly guilty of war crime.

Jon Snow Does the landing of the plane, does the knowledge of passage of an individual through your country perhaps destined for mistreatment amount to a war crime?

Lord Steyn It's going to depend on degree. But once there is knowledge of the detainees maybe tortured there is a risk that those who facilitate these flights may be guilty.

Jon Snow Let me press you then, the British authorities may be guilty of war crimes?

Lord Steyn If the British authorities were fully aware of the purpose of the flights. If they were aware that these were attempts to take detainees to place where they could be tortured, of course there is the risk that the British authorities may themselves be guilty of war crimes. But it is dependent of proof.

Jon Snow What do you say to the civil power who says; 'We are confronted by a threat to our citizens from the suicide bomber which is without precedent, we have to adapt. And your system of international law isn't adapting fast enough'.

Lord Steyn I give the answer that President Barak, the president of the Israeli Supreme Court – and a very outstanding lawyer – has given to that. The answer he gives is that a democracy must sometimes fight with his hands tied behind his back. And it that way it becomes stronger, not weaker.

Jon Snow What then do we ask of our government from a legal perspective?

Lord Steyn From a legal perspective, I would say we are at least entitled to ask of our government that it must stand up to the international rule of law, that it must do so unambiguously and publicly. That necessarily involves that there should be no kow-towing to the lawlessness of the US administration.