The tyrant's flaw: Geoffrey Robertson interviewed

About the authors
Charlie Devereux is a freelance journalist and photographer. He was a member of the openDemocracy editorial team from August to December 2005
Geoffrey Robertson is a leading human-rights lawyer and United Nations war-crimes judge. he has written a number of books including: a href=http://www.penguin.co.uk/nf/Book/BookDisplay/0,,0_0141010142,00.html target=_blank>Crimes Against Humanity.

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Charlie Devereux: You describe a variety of heroic characters in the book but primarily you concentrate on John Cooke. Can you explain why?

Geoffrey Robertson: John Cooke has been largely ignored or vilified by historians and does not appear to have been given the significance that his contribution to the remarkable progress in ideas at this time demands. He struck me as the pivotal figure in the two trials that I looked at: the trial of Charles I and the trial of the regicides.

He was the prosecutor who formulated the novel charge of tyranny against Charles I and was the central figure in the regicide trial which ended in his disembowelling in front of Charles II. He is important as a thinker as well as a legal figure: he was the first to urge the abolition of imprisonment for debt (the great blot on the legal system); he was the first criminologist in a sense. Before Gerrard Winstanley, he argued that poverty causes crime and that certain things should be adjusted to face that reality. In so many other ways, he was before his time as a reformer.

Click here to read an extract from Geoffrey Robertson’s book “The Tyrannicide Brief: The Story of the Man who sent Charles I to the Scaffold

Charlie Devereux: Why do you think that he has been ignored by historians?

Geoffrey Robertson: I think that is complex. Part of the reason may be because he was a rather frail figure who didn’t contribute militarily to the parliamentary side in the civil war; he was not an MP or a colonel in Cromwell’s army – “I am not a swordsman”, he said. In addition, there is the way English historians have shrunk from celebrating, commemorating, or even analysing the king’s trial: it’s been regarded even by the liberal and pro-Cromwellian historians as rather an embarrassment.

Charlie Devereux: You talk a lot about Cooke’s legal innovations and his ideas for social reform. Can you trace his thinking as a direct influence on reforms that were to come?

Geoffrey Robertson: I think that it affected the Levellers. He was John Lilburne’s counsel and Lilburne always speaks of him with some veneration. I think that his views were very influential on the Levellers, although he stood apart from them in supporting the regime. They expressed his ideas in rather more vehement and comprehensible fashion than he did.

Cooke was a lawyer and a stickler for careful expression – he didn’t have the Levellers’ flamboyance of style. He wasn’t an orator or a popular polemicist. I think his case against the king was influential and one can trace in John Locke’s philosophy some strands of that thinking. And, of course, I think he had an impact on John Milton. But I think his ideas were filtered very much through better writers like Milton, Lilburne and, later, Locke. The republication of some of his ideas in the 1690s was significant.

Geoffrey Robertson is a leading human-rights lawyer and United Nations war-crimes judge. Among his books are Crimes Against Humanity (Penguin, 2002) and The Tyrannicide Brief: The Story of the Man who sent Charles I to the Scaffold (Chatto & Windus, 2005)

Also in openDemocracy on international legal accountability:

Anthony Dworkin, “The trail of Milosevic: global law or war?” (February 2002)

Victor Peskin, “After Zoran Djindjic: the future of international criminal justice” (March 2003)

Anthony Dworkin, “The trials of global justice” (June 2005)

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A different history

Charlie Devereux: Charles I was taken to trial but he wasn’t actually put on trial. What difference do you think it might have made if he had agreed to acknowledge the authority of the court and plead either guilty or not guilty? Would that have speeded up legal reform in the decades following?

Geoffrey Robertson: History would have been different. Charles was, in a way, very clever to use the tactic he did; it enabled him to protest at the illegality and unconstitutionality of the court while avoiding the fact that the evidence showed him to be guilty as charged.

If he had entered the fray, if he had instructed Matthew Hale, the leading barrister of the time who was prepared to act for him, and if he had pleaded not guilty and challenged the evidence, then the court’s judgement in the end would have been very much more authoritative.

Charles’s tactic was the one initially employed by Slobodan Milosevic but then he resiled from it and tried to have it both ways. Louis XVI made the mistake, in tactical terms, of pleading not guilty and contesting the charge. It would have been a different and far more satisfactory event had Charles entered the defence that he made on the scaffold. He claimed on the scaffold that he didn’t start the war, and that remains a matter of dispute between historians.

It would have been a fascinating exercise to see him contest Cooke’s evidence and I think one of the reasons why he didn’t was a decision that he was guilty of the acts that he was accused of. He laid the ground for his subsequent martyrdom, and indeed the restoration of the monarchy by carefully avoiding a trial on the merits and by concentrating his fire on the unconstitutionality of the court. Indeed, by constitutional standards of the time, it was difficult to defend as a constitutional court.

Charlie Devereux: So you are saying that the trial wasn’t entirely fair?

Geoffrey Robertson: No. There wasn’t a trial but the procedure was exceedingly fair – uniquely fair by the standards of the time. Other people who refused to plead had heavy rocks pressed on them in order to make them enter a plea and they frequently died. Most trials were finished within a few hours.

A modern echo

Charlie Devereux: Do you think that the tyrannicide brief can be used as a precedent to prosecute modern-day tyrants? Can it be cited?

Geoffrey Robertson: We’ve moved on 350 years and the tyrannicide brief fascinates as the first attempt in modern times – since the treaty of Westphalia came into being a few months before the trial, which was the beginning of modern international law – to prosecute a head of state. It is of interest to see how the first effort was made and how some of the problems in that exercise persist. Some of the problems that Cooke and the court faced are with us today – in the case of Saddam Hussein.

Charlie Devereux: What parallels do you draw between Charles I’s trial and Saddam Hussein’s?

Geoffrey Robertson: You have a dictator and an absolute monarch, and a war waged by both men against their own people, civil wars that were waged to prop up their power and their right to absolute rule. Saddam Hussein was charged with summary execution. In the case of Charles, the evidence suggested that he supervised the torture of prisoners of war. It is fair to say that the parallels are by no means exact; by the standards of European rulers of the age, Charles’s alleged crimes are less brutal than those alleged against Saddam Hussein.

Charlie Devereux: He’s used the same tactics in court. And the prosecution do seem to be in awe of him, as parliament was in awe of Charles I…

Geoffrey Robertson: Correct.

Charlie Devereux: Do you think that if Saddam is executed it will make him a martyr in the same way?

Geoffrey Robertson: Not precisely the same way, but I do think it will make him a martyr. I do think that executing people in these circumstances does induce their martyrdom and will certainly rev up the already quite brutal civil war and inspire those who are already causing havoc in Iraq to greater heights of resistance.

Charlie Devereux: What would you propose as an alternative?

Geoffrey Robertson: I think that there must be a sensible alternative to the death penalty. I don’t think it’s enough for those of us who oppose the death penalty to pretend that life imprisonment is a realistic option if it is served in the state where the leader still has powerful connections and factional support. It would be unrealistic to sentence Saddam to life imprisonment in Iraq.

The alternative of sending him to an extremely relaxed prison regime abroad is not on if it permitted him to communicate and engage in the politics of the state. I’ve suggested what I call the St. Helena alternative, which was used with Napoleon Bonaparte, namely to put him in a place, if he is convicted and his conviction is upheld on appeal, where he cannot trouble the world again and maybe a place from which he will not be heard from again. It seems to me that, while the death penalty is wrong in principle and counterproductive in practice, careful thought has to be given to the circumstances and the place where life imprisonment would be served.

A new era for international law

Charlie Devereux: How do you think that international law can move forward in attempts to prosecute tyrants today?

Geoffrey Robertson: I think that it’s unsatisfactory to have a national court, rather than an international court, trying Saddam Hussein. International criminal law is just beginning. It went into stasis after Nuremberg, and we’re just beginning to collect on the legacy of Nuremberg. There are difficulties: the inability of the international community to define the crime of aggression, the concern about the illegality of the invasion of Iraq.

I have proposed that the United Nations consider a convention against tyranny which would provide a legal basis for intervention in a state whose ruling party or ruler so demolishes the human rights of the people that there is no alternative but to intervene. That convention against tyranny would provide a legitimate basis for intervention – and would have provided a basis for intervention after Halabja in 1988 when the state, led by Saddam, gassed thousands of Kurds in what is now alleged to be genocide.

As in the case of Rwanda in 1994, the world should be – through the United Nations – under a duty to intervene. It may also be the case that regimes that tyrannise their people should also be adjudged ripe candidates for intervention unless they change their policies. I’m thinking of the Taliban regime which denied women an education, killed homosexuals, and harboured terrorists. There can be states whose rejection of human rights standards is so profound and deep-dyed that they can be regarded as candidates for intervention if they don’t change their ways.

Charlie Devereux: So would you classify the invasion of Iraq as tyranny?

Geoffrey Robertson: I would classify Iraq after Halabja as tyranny. When a state kills thousands of innocent people by use of poison gas, that is certainly a tyrannical exercise in power that should have been stopped and punished at the time. Instead, in 1988-89 the world forgave immediately and started to do deals, sell weapons and buy oil from Saddam Hussein. So there does need to be some form of international convention which provides a process for deciding whether the state is so bad that it justifies international intervention. That has not been available and the legal basis upon which Iraq was invaded is shaky.

Charlie Devereux: How do you see the tyranny law progressing? People have spoken of Henry Kissinger as someone who committed tyrannical crimes, specifically in Latin America. Can you see it developing that far?

Geoffrey Robertson: I don’t think that Henry Kissinger will ever end up in the dock but I do see the possibility that other potential Kissingers may be deterred from taking the kind of decisions that he advised, if they violate international law. I see this discussion as useful in that it emphasises that politicians today are not beyond the eventual reach of international law.

The idea that George W Bush and Tony Blair can be put in the dock instantly is pie in the sky. But I think that as international law develops it will be more difficult to mount invasions, for example, justified by the right of self-defence, when there is no evidence that the invaded state poses a real threat to anyone.

Charlie Devereux: That’s provided that the United States respects international law.

Geoffrey Robertson: I don’t feel so gloomy about that as many do, because I think that, although the US takes a view that its soldiers should not be liable to arrest and trial by the international criminal court, nonetheless I think that international standards do influence American action. I have seen many examples where the principles of various conventions are applied, even when the US has not ratified those conventions. So whatever may be said about the US refusal to ratify a particular convention, unratified conventions, in practice, have a persuasive influence on US action. They serve as some restraint if they reflect the standards of international law.