TEDxHousesofParliament - Philippe Sands - The individual in the new world order

Philippe Sands QC is Professor of Law and Director of the Centre for International Courts and Tribunals at University College London. He is a practising barrister and co-founder of Matrix Chambers, acting in cases before the English courts and international courts and tribunals, including the International Court of Justice.

Many of you in this room have been reading in the

papers over the last few days about what's going on in Syria.

And probably you are as appalled as anyone else

of the images of mass killing on all sides,

of the taking of innocent life of children, women,

completely defenseless people.

And you're probably asking yourselves:

"Why isn't anything being done to stop it?"

I want to talk a little bit about the system of international rules

that allows you to begin to answer that question.

And I want to do it by reference to a case to have come to,

as I conclude, that took place ultimately in the Houses of Parliament.

The judgment given in November 1998

in a case that many of you would be familiar with involving

senator Augusto Pinochet. Decisive moment that goes

very closely to the kinds of issues we're talking about

when we ask the question:

"Why isn't president Assad being stopped from killing?"

I work as an international lawyer. You've probably have

heard about international law. You probably don't know

a huge amount about what international law is.

It's traditionally described as the rules that govern

the relations between states.

I wake up in the morning, I switch on my computer,

I have emails about the sort of cases and issues that I'm involved in:

the protection of human rights in the former Yugoslavia, the cases of Vukovar;

the right to return of the Chagossians to the Island of Chagos,

part of the decolonization problems involving

the United Kingdom and a load of other cases.

And classically the world that I deal with,

is a world between states,

it's a world which governs relations between

the two hundred or so countries that occupy the world.

If you were to step back from this planet, jump up to the moon,

and look at how we organize ourselves

you'd think it's pretty weird.

We've divided ourselves into about two hundred countries

and the basic idea of international law is that

within those two hundred countries -- and it used to be

only forty or fifty in the 18th and 19th centuries --

states, governments are free to do whatever they want

to their citizens.

They can torture them, they can kill them,

they can disappear them,

they can adopt rules saying that, you know:

"every female over the age of sixty is going to be killed,"

"every male under the age of fifteen is going to be killed."

The classic rules of international law are premised on

the concept of sovereignty, the power -- absolute power of the state.

That changed dramatically in the 20th century

and it's the idea that is at the heart of that change,

the idea that finally gives a role and a place for an individual

that is at the heart of the answer to the question that I posed at the outset

and that dominates the answer to that question.

It's the one that I want you to think about.

What happened? We know about the atrocities in Stalin's Soviet Union.

We know about the atrocities in Germany

and in many occupied countries in the '30s and in the '40s

and the argument of the government of those countries

at the time was: "Well, we may have domestic rules

that limit what we can do but there's no rule of

international law that stops the killing."

Individuals have no rights.

A very small number of people in the middle part of the 20th century

started developing the idea that actually individuals did have rights.

And the rights of individuals were exercisable against state.

For the first time, ever, the very recent idea

an individual could stand up and say:

"You Mr President are not allowed to do that.

You are subject to constraints, not the constraints of

your domestic legal order but the constraints of

your international legal order."

And that's what culminated in the creation of instruments

that many of you are very familiar with:

the Universal Declaration on Human Rights,

the European Convention on Human Rights and then

other instruments that emerged in the late 1990s like

-- also in 1998 the year of the Pinochet case,

the statute of the International Criminal Court.

In fact that was the year that was vital for another reason,

in that same year - 1998 - for the first time ever,

for the first time in human history, a serving head of state

was indicted by an international court:

Slobodan Milošević. It had never happened before.

Now that is a vital change. A change which is premised on

the very simple idea that individuals have rights against their state.

That was a development that was hard fought for

and which, I have to say right now, is under challenge

and under threat. Why? Well, many of you remember

the events of September 11th

and with the events of September 11th a number of governments

that had been at the heart of promoting the idea that

"every human person has rights", an idea reflected for the

first time in a very obscure document called

the 'Atlantic Charter' adopted in 1941 by Churchill and

Roosevelt, that idea that "every individual has rights,

whoever they are, wherever they may be, in whatever

circumstance they may find themselves in" is now under

threat from those who promoted the very idea.

Why is it under threat? Well, many of you are familiar with

the stories about banging people up because they are alleged

to be terrorists and holding them without charge

indefinitely for the rest of their lives -- I wrote a book about that.

About and individual Mohammed al-Qahtani arrested in

2002 still detained at Guantanamo, has not being charged,

has no release date and it appears will be held for the rest

of his natural life because of a 'so called' war on terror.

You're familiar with the idea of "drones", the idea that

all of a sudden because we are 'at war'

we are free as a nation,

or as Americans, to define individuals who pose

a threat to our society and just take them out.

Other people call that extrajudicial killing.

It's done in Afghanistan and it's extended beyond the war-zone

to places like Pakistan and to places like Yemen.

Well, if you are going to take people out

because they are alleged Al Qaeda individuals in Pakistan

why not do it in Edgware? Where do the limits stop?

When you start deciding you are simply going to eliminate those

individuals abandoning the rules that were put in place

in that remarkable period in the decade after

the Second World War.

So, we face a fundamental challenge in relation to

whether we care about these rights. The idea the individual

is now an actor on the international stage and has rights

exercisable not only in relation to his or her fellow individuals

but against the state. And rights not just before national courts,

rights before an international court and international instances.

That was a hard fought victory in the 1940s

it was unique, for millennia there had not been such rights

and yet there are now people in this country, too

in this parliament also who say the time has come for

the United Kingdom to withdraw from the European Convention

on Human Rights. Because, why? Because they don't like

judgments about prisoners' voting rights or they don't like

the way in which certain immigrants are allowed to have

certain rights but that is the essence of human rights.

That is the essence of the system that was put in place,

is that no one falls into a black hole.

Everyone has minimum rights at all times and in all circumstances.

And at the heart of that idea is the place of

every human individual having indivisible rights to be exercised at all times.

Now, I mentioned this building Parliament and why it was significant.

On the 24th of November 1998 I was involved

in receiving a judgment in a case that I've been involved in --

the Pinochet case. And in sense the case articulated the

moment when the idea of individual rights became very real.

What was an issue? Some of you will remember what happened.

Senator Pinochet came to the United Kingdom, for medical treatment.

He took tea with some rather powerful friends and

then one day out of the blue a knock came on the door

and he was arrested. Arrested for allegations of international

crimes committed in Chile very far away not even against

British nationals.

The idea was posited on something called 'universal jurisdiction'

the idea that some crimes: torture, disappearing, killing on a significant scale,

crimes against humanity that are so terrible

that any country can exercise jurisdiction in relation to those crimes.

And a Spanish prosecuting judge decided to indict

senator Pinochet for those crimes and he was in England,

an arrest warrant was issued seeking his extradition to Spain.

Senator Pinochet did exactly what one would

expect him to do, he said: "You can't arrest me, I am the State."

That's the 19th century view of international law.

'L'Etat, c'est moi.' I have absolute power and you

the English courts, the Law lords on the House of Lords are

not entitled to overwrite my immunity.

The case was argued for quite a few days and a couple of

weeks after it was argued we trotted off to

the Chamber of the House of Lords, when the grand old tradition

has changed now, we got a Supreme Court,

five Law Lords stood up in turn to give the judgment.

It was the single most decisive

and defining moment of my professional life

in which the system of international rules, the old system, was cast away.

Never before had any former head of State been held

in the courts of this country or any other country outside

his own to be not entitled to claim immunity for a mass crime.

And the Law Lords took their vote, very soon on we would

two nil down. Two out of the five had voted for immunity.

And then it was 2-1 and then it was 2-2 and there was one

judge left to express a view and at the moment when

that judge articulated his view things were very finely balanced.

You go with the old system: absolute immunity for former head of State.

Or do you go with the new system?

The system that says individuals have rights

and that right includes the right to proceedings, legal proceedings against

people who commit crimes that are particularly heinous.

And the fifth judge -- the fifth judge said 'no immunity'

and at that moment you can hear, you can still see it on

the CNN website, the BBC website if you go to the archive

there was certain sharp intake of breath.

It was a remarkable moment because it was the moment

more than any other where one recognised that the system

had indeed changed and there's no room for complacency.

A lot has happened since then. It's extraordinarily important

that we do not lose the right of individuals to be protected

against their own governments at any time.

Every single person in Syria who is subject today in Homs

or elsewhere, to the kind of heinous terrible indiscriminate attacks

that are taking place is entitled to turn around to us

and to say, to us and to our governments:

"You adopted a new system in the middle of the last century,

you are required to respect that system

and you are required to protect us from this kind of

system that is taking place."

That is the new system of international law.

That is the new set of rules that were talked about

for the person who spoke, sang wonderfully credibly movingly

just before me.

That is a system which reflects a single idea:

the place of the individual in international society.

And I invite you all to think about it

and to defend it with everything you have.

Thank you very much.

(Applause)