New court needed now

PUBLISHED : Sunday, 08 November, 1998, 12:00am
UPDATED : Sunday, 08 November, 1998, 12:00am

The law is often remarkably archaic and the recent English decision that General Augusto Pinochet's arrest was unlawful on the basis of 'head of state immunity' is an excellent example.

The concept of head of state immunity, whilst founded on some sound arguments, often leads to absurd and unjust results. One such absurdity of this rule is that, under Anglo-Hong Kong law, no person can be served with legal documents within the precincts of a head of state, perhaps leading to the result that rogues seeking to escape from the arm of justice could have sought sanctuary in Government House when it was a residence of the British sovereign's representative.

Unfortunately, the Pinochet decision eats into the important concept embedded in the principle of the 'rule of law' that no person is above the law. The inability of domestic courts to deal with alleged acts of atrocity is disappointing. It leads to the need for the operation of an international criminal court, to ensure that no person can rely on technicalities to escape justice.

In July it was agreed, in principle, by over 120 countries that the international criminal court should be established to enforce human rights and to bring to justice those involved in genocide, crimes against humanity, war crimes and acts of aggression.

Interestingly, Chile, Spain and the UK were all parties to this agreement. The UN Secretary General Kofi Annan has rightly stated that the court will be 'the missing link in the international legal system', designed to 'take over when national criminal justice institutions are unwilling or unable to act'. Unfortunately, this criminal court is not yet in operation and the judges of the English High Court identified that the only method, in their view, of trying Pinochet would be by an international criminal court if one were in operation.

In this age of increasing international unacceptance of crimes against humanity, no matter where committed, no matter by whom committed, faster and more active steps should be taken to establish the international criminal court as a fully functioning body bringing justice to the world.