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The justice/due process disequilibrium, death penalties and Somali piracy

  • May 9th, 2011

There seems to be wide acceptance of the need to kill bin Laden  despite legitimate anxiety about undermining international rule of law. As Russel Norman and John Pagani recognised yesterday on Q & A, small countries like New Zealand have most to lose if the tender shoots of international law are trampled by martial elephants.

But we cannot have it both ways. If we support procedural law so refined and delicate that it ceases to deliver the protection and  justice that the people demand from their governments, those governments, in democracies at least, will have no alternative but to find ways to deliver extra-judicial justice. They may dress it up. "Shot while trying to escape" is an age old cover for rough justice as well as a common tactic of brutal oppressors.

Now the general applause for killing bin Laden raises the question whether Amnesty and others who rule out the death penalty score an own goal. If a due process penaly can never match the evil, so that the justice scales can never be balanced there will be irresistible pressure for alternatives to evade the law. There is undeniable moral inequality when mass murderers live in comfort long after their terrified victims. Their comfort creates a political inevitability for pre-judicial killings of "necessity".

Live terrorist murderers in custody are also focus points for further murder and hostage taking. By insisting on constipated ICC processes for trials, irrespective of cost and delay even where guilt has been established for all to see, we lawyers will leave leaders with little alternative but to connive at real-politik pre-judicial killings and disappearances.

I predict that we will soon see this balance reasserting itself in another area. The  world's navies have been emasculated by their on-board lawyers (or those over-ruling the commanders on the spot from safe offices far away) in the fight against Somali pirates. Soon we will see shipowners engaging genuine private defenders. They'll sink pirate attackers and leave them to drown. The defenders will then melt away.

There will be widespread official connivance to allow the appearance of continuing observance of the foolish international law and conventions that have created the opportunity for the pirates.

The hand-wringing will resume. Those who've created the irreconcilable tension will never admit that their disdain for the morality of ordinary citizens is ultimately responsible for corroding and causing the loss of the rule of law they desperately desire.

The same dynamic drives many domestic law changes that are so upsetting our legal establishment. People of goodwill are right to be concerned about the erosion of procedural rights – because they are going instead of the sacred cows that create the judicial injustice.

 The solutions are in the hands of the legal establishment but they will never accept that.


  • Kiwiwit
  • May 9th, 2011
  • 12:48 pm

I think you are saying, and I agree, that the problem is not the efficacy of international (or domestic) law but rather the issue of Western nations refusing to act consistently and morally in international affairs. The Americans do not want to try these terrorists in regular courts – not because they doubt the ability of their legal system to deal with them but because the US Government does does not want the scrutiny of its own actions that any public trial would bring. The fact that most of Al-Qaeda leadership is comprised of nationals of a friendly nation (Saudi Arabia), financed by political and business leaders of that same nation, and harboured by another friendly nation (Pakistan) indicates that something is seriously wrong with the United States’ international relationships.

It is time for some moral leadership in the West and an end to the thuggery that is committed and supported by all of our governments in our names. Only then will we have the moral right to condemn Osama Bin Laden and his ilk and only then will other governments realise they cannot hide these terrorists with impunity.

  • Don McKenzie
  • May 9th, 2011
  • 2:40 pm

Kiwiwit, I don't think you quite get what Stephen Franks was getting at.
To use something a bit closer to home lets look at flag burning at an ANZAC parade. The 'learned judiciary'  have decided in their wisdom that flag burning is no longer a crime unless it causes a distubance. We have freedom of speech and now freedom 'for action'. You can bet that more 'flag burning freedom' will see some action and it may not be to the flag burners good safety and comfort. i.e citizens may well take the law into their own hands. 


You've got it Don

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