Too Big To Punish.

Too Strong For The Law’s Web: But, if the USA is too big to punish, why isn’t the Russian Federation? Russia’s economy may be roughly the size of Italy’s, but it’s nuclear arsenal is more than capable of laying human civilisation to waste. Threatening to arrest Vladimir Putin - especially when the Russian Federation and the rest of the United Nations are recalling George W. Bush’s illegal invasion of Iraq twenty years ago – is an astonishingly provocative act.

I AM CONSTANTLY ASTONISHED at how blithely unconscious the West is of its own transgressions. That the International Criminal Court (ICC) could announce its decision to issue a warrant for the arrest of Vladimir Putin a mere three days ahead of the twentieth anniversary of the United States’, the United Kingdom’s, Australia’s and Poland’s illegal invasion of Iraq on 20 March 2003 shows just how morally comatose the West has become.

Twenty years ago, President George Bush, Prime Minister Tony Blair, Prime Minister John Howard and the Polish premier, Leszek Miller, ordered a massive airborne attack and an all-out armoured assault upon a nation that was at peace with its neighbours and, which had made no aggressive moves against any of the nations whose armed forces were pouring across its borders. Unsurprisingly, a large number of the world’s nations condemned the invasion of Iraq as a breach of the UN Charter and international law. Millions of people around the world, with considerable justification, branded Bush, Blair, Howard and Miller war criminals. Certainly, the invasion they authorised led directly to the deaths of hundreds of thousands of innocent human-beings.

So, why didn’t the ICC, which had come into formal existence on the 1 July 2002, issue warrants for the arrest of Bush, Blair, Howard and Miller? Were they not guilty of war crimes and crimes against humanity? Had they not involved themselves in what the prosecutors at the Nuremburg Trials called “the crime of crimes” – the planning, preparation and waging of aggressive war? The crime for which the surviving Nazi leaders were hanged in 1946.

From the grim perspective of the world of realpolitik, the reason why the ICC decided not to prosecute the four aggressors is obvious: the United States is simply “too big to punish”. Not only did the USA refuse to recognise the jurisdiction of the ICC over United States citizens, but every diplomat and jurist worthy of the name understood that any attempt to arrest George W. Bush would provoke a reaction of truly biblical proportions.

But, if the USA is too big to punish, why isn’t the Russian Federation? Russia’s economy may be roughly the size of Italy’s, but it’s nuclear arsenal is more than capable of laying human civilisation to waste. Threatening to arrest Putin - especially when the Russian Federation and the rest of the United Nations are recalling the illegal invasion of Iraq twenty years ago – is an astonishingly provocative act.

Now, some of those reading these words will object that they are nothing more than an egregious example of “whataboutism”. If Putin stands accused of illegally deporting thousands of Ukrainian children to Russia, then he should be put on trial for his actions – not let off because Bush, Blair, Howard and Miller were not held accountable for theirs. Crying “What about Iraq?!” is an irrelevant question – it has no bearing on the case against Putin.

Except, of course, it does. The application of justice must not only be even-handed, it must be seen to be even-handed. If the public had witnessed the child of a rich and powerful family engaging in clearly dangerous and illegal activity, and then seen the Police refuse to bring charges against him because his family was simply too rich and too powerful, they would be disgusted. And if they then saw the child of a poor and powerless family brought to trial for exactly the same offences, they would be outraged. Prosecuting the poor, but not the rich, child would, quite rightly, be regarded as a travesty of justice. What’s more, the court responsible would be utterly discredited in the eyes of all fair-minded people.

Two-and-a-half thousand years ago, a Scythian prince named Anacharsis had this to say about Ancient Athens’ celebrated legal code: “Written laws are like spiders’ webs; they will catch, it is true, the weak and poor, but would be torn in pieces by the rich and powerful.”

The USA has proved the truth of Anacharsis’ observation by simply overawing the ICC’s timid prosecutors. Twenty years on from its failure to hold the invaders of Iraq to account, however, the ICC clearly believes that the Russian President is too weak to tear its legal web in pieces.

But who would be the person who arrests Putin? Or the country that tries to hold him?

This essay was originally published in The Otago Daily Times and The Greymouth Star of Friday, 24 March 2023.

A Moral Victory: The Supreme Court Rescues Our Judiciary From Itself.

The Last Line Of Defence: What is wrong with our justice system that the judgements of its lower courts have so often been overturned and criticised by the Law Lords of the UK Privy Council and, more latterly, the judges of our own Supreme Court?

THE SUPREME COURT has finally declared the deal struck between the Department of Labour and Pike River boss, Peter Whittall, “unlawful”. A moral victory for Sonja Rockhouse and Anna Osborne, certainly, but hardly a victory for the New Zealand justice system. Though the Supreme Court came through for the plaintiffs in the end, the High Court and, more worrying still, the Court of Appeal, had both earlier rejected their legal team’s arguments. Had these two women not been as tough as the Pike River rock, their gruelling legal journey all the way to the Supreme Court might never have been completed. It would still be legally acceptable for delinquent chief executives to buy their way out of a conviction. Significantly, too much time has passed for Mr Whittall to be hauled back into court.

What is wrong with our justice system that the judgements of its lower courts have so often been overturned and criticised by the Law Lords of the UK Privy Council and, more latterly, the judges of our own Supreme Court? Why, for example, did it require a determined journalist, an Aussie jurist and a bloody-minded prime minister to give Arthur Alan Thomas justice? Why was New Zealand’s Court of Appeal so manifestly unequal to that task? And why was Peter Ellis unable to rely upon that same Court of Appeal to clear his name? In other jurisdictions, all the victims of the moral panics induced by false “Satanic Abuse” accusations had their convictions overturned in their countries’ courts of appeal. Not here.

It’s almost as if the New Zealand courts are afraid of acknowledging the occasional mistakes that all highly complex human institutions are bound to make. That once the State, or the Courts, have determined a person to be guilty, and an institution innocent, then that judgement must be upheld at any cost. Those exercising authority over their fellow citizens have been robed, like the Pope, in the vestments of infallibility. Thus protected, their judgements are only very rarely overturned.

Those filling the high seats of our justice system are not only reluctant to overturn the decisions of their colleagues in the lower courts, but they seem equally reluctant to hold accountable their peers in public administration and corporate management. And woe betide any members of the judiciary who so forget themselves that they condemn wrong-doing in high places in memorable and evocative language. When Judge Peter Mahon called the testimony of Air New Zealand to the Erebus Inquiry “an orchestrated litany of lies”, the national airline appealed to his brother judges to have the offending words struck out. They happily obliged!

This ingrained reluctance to hold New Zealand’s most powerful citizens and institutions to account, renders our justice system contemptible in the eyes of those who look to the judiciary for protection against the growing power of the state and its agencies. As if this failure wasn’t serious enough, the judiciary’s all-too-obvious reverence for the wielders of power in New Zealand society has, over many decades, seeped down into the minds of the broader population, contaminating the pool of potential jurors.

The near impossibility of securing a conviction in even the most egregious cases of police officers breaking the law is, in part, a reflection of the judiciary’s failure to educate the public in the supreme importance of making sure that those entrusted with the enforcement of the law understand how absolutely they are professionally and personally bound to uphold it. It is not difficult to understand why, earlier this week, after learning of the acquittal of two Police officers charged with kidnapping a 17-year-old youth, Dr Dean Knight, a senior law lecturer at Wellington’s Victoria University, tweeted: “I worry the rule of law took a hit today.”

It’s as well the Supreme Court chose the same week to reaffirm the principle that, in a nation of laws, it must remain utterly unacceptable for persons charged with offences to avoid conviction by simply handing over a great deal of money. Until the members of this country’s highest court intervened, the Labour Department’s refusal to present evidence against Peter Whittall had provided the critics of our judicial system with a seemingly irrefutable example of the way in which the powerful are able to close ranks against people like Sonja Rockhouse and Anna Osborne – making a mockery of their expectation that all citizens will be treated equally before the law.

Had they not, then the words of the Ancient Scythian philosopher, Anacharsis, would have been borne out in their entirety:

“These decrees of yours are no different from spiders’ webs. They’ll restrain anyone weak and insignificant who gets caught in them, but they’ll be torn to shreds by people with power and wealth.”

This essay was originally posted on The Daily Blog of Saturday, 26 November 2017.