Geoffrey Robertson's Blog, page 5

Yulia Tymoshenko's trial was a travesty of justice | Geoffrey Robertson

Having suffered unfairly under Ukraine's corrupt justice system, the former prime minister must now reform it

Yulia Tymoshenko's miraculous release at the weekend was from a seven-year prison sentence imposed for a non-existent crime. The former Ukrainian prime minister had done nothing wrong: the police, prosecutors and jurists who fabricated her offence were subservient to a state that wanted her eliminated. Whether or not Tymoshenko becomes president of her embattled country, Europe needs to find a way to deal with officials who are complicit in human rights abuses.

Tymoshenko was accused of abuse of office, because she made a deal with Vladimir Putin when he stopped gas supplies to Ukraine in the winter of 2009. This threatened a humanitarian disaster unless Ukraine agreed to pay a higher price for Russian gas. Under pressure from the German chancellor, Angela Merkel, and the European commission president, José Manuel Barroso, and with her people dying from hypothermia, Tymoshenko gave in to Putin's demands. Some criticised her for not holding out for longer, and she narrowly lost the presidential election a few months later to Viktor Yanukovych.

Yanukovych appointed his crony Viktor Pshonka as prosecutor general, who set his deputy, Renat Kuzmin, to destroy Tymoshenko. This was easy in a former Soviet state that had embraced democracy but had not reformed the justice system, in which all-powerful prosecutors control the judges. Ukraine has "P-plate judges" provisionally appointed for five years with tenure confirmed only if their decisions have not upset the regime. This system has produced a conviction rate in Ukraine courts of 99.8% – an impossible statistic for any democratic country.

To convict at Tymoshenko's trial, the judge brutally refused her bail and did nothing to discourage televised proclamations of her guilt by Yanukovych and his top prosecutors. But even this judge could not invent evidence – because there was none – that she had acted in the gas deal for personal gain, or with any trace of fraud or dishonesty.

Her actions, taken to avoid a humanitarian disaster, cannot rationally be regarded as a crime. But for making what her enemies called a "bad deal", she was jailed.

This travesty of justice was accompanied by similarly rigged prosecutions of her ministers. The Council of Europe turned a blind eye to the outrages. The European court of human rights upheld Tymoshenko's initial complaints, but its slow processes and indulgence of the Ukraine government's delaying tactics prevented it from giving her any meaningful relief.

This failure underlines the need for EU member states to adopt a "Magnitsky Law", which names and shames officials– especially judges, prosecutors and police chiefs – who are complicit in abuses. Sergei Magnitsky blew the whistle on state corruption in Russia and was killed in prison: the US, to Putin's fury, last year adopted a law that denied entry and banking services to 16 of his tormentors, including judges who had denied him bail.

London has become a favourite destination of violent and corrupt officials and oligarchs. But when five former secretaries of state for foreign affairs called last year on the minister for Europe, David Lidington, to support a Magnitsky law, his ignorant response was that it was "unlikely to contribute to achieving justice". Tell that to Tymoshenko.

Her vicious prosecutor, Pshonka, was the first to be indicted by Ukraine's parliament on Sunday, followed by the defence minister accused of ordering the shooting of protesters. There will likely be more charges against Yanukovych and his cronies if the opposition triumphs in the May elections. Can they be fairly tried in Ukraine, before their own judicial tools?

The greatest challenge to any new government will be to establish an independent judiciary. It may be better for it to invite European (including Russian) judges to sit on the trials of Yanukovych's corrupt apparatchiks, and to ask the international criminal court to try those accused of ordering the lethal force used against peaceful protesters – a crime against humanity.

Tymoshenko, whatever her faults in failing to capitalise on the Orange revolution, is a remarkable and courageous figure. After 30 months in prison for a crime that was not a crime, her greatest challenge will be to reform the justice system so this cannot happen again – even to those who put her behind bars.

• Geoffrey Robertson QC advised Yulia Tymoshenko in her European court cases

UkraineEuropeYulia TymoshenkoEuropean UnionGeoffrey Robertson
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The vilification of Nigella Lawson: this is no way to treat a witness | Geoffrey Robertson

The justice system depends on people like Lawson doing their public duty to give evidence. In return, they need protection

Isleworth crown court may not be the SW3 of the legal profession, but for the past few weeks a commonplace trial for fraud has become a national spectacle, as the privacy of the Lawson/Saatchi marriage, home and family life has been put on public display. The case of R v Grillo & Grillo turned into the trial of Nigella Lawson, who having admitted some drug use spent as long on the stand as either defendant, and faced a more hostile cross-examination. Is this the right way to treat a witness?

Criminal justice is dependent upon the willingness of witnesses to testify in public – a nerve-racking experience. If they or their family can be vilified, in the defamation-free zone of a courtroom, then they will be reluctant to do this civic duty. This case could undermine confidence that the justice system will be fair to them, however scrupulously it protects the rights of defendants.

The Grillo sisters were acquitted because the prosecution could not prove the Saatchi/Lawson allegation beyond reasonable doubt, but there is no doubt that Lawson suffered unfairness in the course of the trial. Accused of being a "habitual criminal", she had no right to call evidence in her own defence. She had no right to her own counsel, no power to cross-examine her accusers or to address the judge or the jury. The prosecution had no duty to protect her reputation and neither did the judge.

For example, when the prosecutor asked about buying cigarettes for underage children, a defendant replied: "Well, if Nigella let the children smoke weed …" The judge ordered that this answer should not be reported, but later discovered that he had no power to make such an order. The front-page headlines in newspapers the next day were "Nigella let her children smoke cannabis". Lawson, who had already given evidence, had no opportunity to respond.

English law rightly gives every opportunity to accused persons to develop a defence. However, in this case, some judges would simply have ruled the drugs issue irrelevant (leaving the jury to acquit if it had doubts over whether the sisters were dishonest). That is exactly what the trial judge did when the application to cross-examine Lawson on "bad character" was belatedly made. The law (section 100 of the Criminal Justice Act 2003) only allows "bad character" evidence about a witness if this might have "substantial probative value", and in a detailed ruling delivered on 15 November the judge refused to allow it.

A few days later, the judge changed his mind when he was shown the email Charles Saatchi sent to his ex-wife after he had seen confidential statements apparently made by the Grillos to their solicitors, which had mysteriously appeared on an internet blog site: "Of course the Grillos will get off on the basis that you were off your head on drugs." The judge thought this might amount to a defence and so reversed his earlier ruling, without objection from the prosecution. The court did not, regrettably, investigate further, or hear Saatchi's explanation (it could have done so, in a process lawyers call a "voir dire"). Instead, the judge lifted reporting restrictions and read out the email, giving the allegations worldwide publicity without being placed in any sort of context.

When Saatchi did testify at the trial, he explained that he had no evidence at all of Lawson's drug use at any time in their 10-year marriage: the email was an angry and irrational private communication, he said, which did not mean he believed that she would ever have authorised the expenditure. In these circumstances, many judges would have refused to allow "bad character" cross-examination.

But "bad character" cross-examination was allowed, and a problem – both intractable and intolerable – arose. Once section 100 is opened, the defence may make any and every allegation of suspected wrongdoing. It is not confined to asking merely about previous convictions. There is no charge, no indictment, no particulars, no disclosure of evidence – all the basic rights of a defendant, guaranteed by the Human Rights Act, are denied to the witness. Witnesses cannot call character evidence from old friends like me, or new friends like the prime minister. Witnesses are not allowed time or facilities to prepare answers, or defend themselves by counsel, or cross-examine the accusers or address the jury. No one in court has any duty to protect them.

Prosecutors and Crown Prosecution Service representatives do not necessarily have the interests of their witnesses at heart. The prosecution's position was that the sisters had "dredged up" the drugs allegations "to save their skins", so it was not concerned to investigate them or even to ask Lawson's three personal assistants who would have known the truth (about whether cocaine was kept in the jewellery box, and so on) any questions. Nor were these witnesses questioned about drugs by the defence.

The trial would have been a real test for truth if Lawson had been entitled to her own counsel, who could have elucidated her version of the facts, obtained the relevant evidence from her assistants, called other witnesses and cross-examined the Grillo sisters much more effectively than the prosecutor, who did not represent Lawson and could not have taken instructions from her. Rather than go along with the pretence that "Nigella Lawson was not on trial", we should recognise reality where section 100 is in play, and provide those in her position with some rights.

This would, in some cases, be damaging to a defendant, but would it be unfair? Leaving the Grillo case aside, if a defendant uses court privilege to vilify a witness who has had no previous convictions, why should he or she not face a response from counsel instructed by that witness to put the other side of the story? The alternative reform is to give judges greater power permanently to prohibit the reporting of "bad character" allegations against witnesses. But there is already too much secrecy in legal proceedings. The best way forward would be for parliament to amend section 100 so that whenever a judge permits "bad character" cross-examination of a witness with "good character" (ie with no previous convictions), such witnesses should be entitled to their own counsel who could cross-examine their accusers and call evidence of innocence.

There is no perfect solution to the clash between the right of a defendant to muckrake and the need for witnesses to be able to safeguard their privacy. English law is in blatant breach of the European convention on human rights by providing no effective way for witnesses to protect their reputations. The attempted courtroom crucifixion of the domestic goddess will have the result of discouraging potential witnesses from testifying. Parliament can undo that damage by creating, whenever section 100 is applied, a new courtroom character: counsel for the witness.

UK criminal justiceNigella LawsonCharles SaatchiGeoffrey Robertson
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The privacy of ordinary Australians is under serious threat | Geoffrey Robertson

Geoffrey Robertson: Intelligence representatives claimed they were entitled to share the confidential data of Australians with international partners. Who will guard the guardians?

Geoffrey Robertson

Edward Snowden's fear of flying is justified | Geoffrey Robertson

Snowden is a refugee, not a spy. But America has history when it comes to forcing down planes in defiance of international law
Edward Snowden 'to leave Moscow airport' – live updates

As Edward Snowden sits in an airside hotel, awaiting confirmation of Russia's offer of asylum, it is clear that he has already revealed enough to prove that European privacy protections are a delusion: under Prism and other programmes, the US National Security Agency and Britain's GCHQ can, without much legal hindrance, scoop up any electronic communication whenever one of 70,000 "keywords" or "search terms" are mentioned. These revelations are of obvious public interest: even President Obama has conceded that they invite a necessary debate. But the US treats Snowden as a spy and has charged him under the Espionage Act, which has no public interest defence.

That is despite the fact that Snowden has exposed secret rulings from a secret US court, where pliant judges have turned down only 10 surveillance warrant requests between 2001 and 2012 (while granting 20,909) and have issued clandestine rulings which erode first amendment protection of freedom of speech and fourth amendment protection of privacy. Revelations about interception of European communications (many leaked through servers in the US) and the bugging of EU offices in Washington have infuriated officials in Brussels. In Germany, with its memories of the Gestapo and the Stasi, the protests are loudest, and opposition parties, gearing up for an election in September, want him to tell more.

So far Snowden has had three offers of asylum from Latin America, but to travel there means dangerous hours in the air. International law (and the Chicago Convention regulating air traffic) emphatically asserts freedom to traverse international airspace, but America tends to treat international law as binding on everyone except America (and Israel). Thus when Egypt did a deal with the Achille Lauro hijackers and sent them on a commercial flight to Tunis, US F-14 jets intercepted the plane in international airspace and forced it to land in Italy, where the hijackers were tried and jailed. President Mubarak condemned the action as "air piracy contrary to international law" and demanded an apology, to which Reagan replied: "Never." The UK supported the action as designed to bring terrorists to trial.

In 1986 Israel forced down a Libyan commercial plane in the mistaken belief that PLO leaders were among its passengers, and the US vetoed UN security council condemnation. So there must be a real concern, particularly after Nato allies collaborated in forcing down the Bolivian president's jet, that the US will intercept any plane believed to be carrying Snowden to asylum, either because he is tantamount to a terrorist (Vice-President Biden has described Julian Assange as a "hi-tech terrorist") or simply because they want to put him on trial as a spy.

That, no doubt, is why Snowden cancelled his ticket to Cuba a few weeks ago, fearing the flight would end in Florida. Russia has, in effect, provided him with temporary asylum (there is no legal magic about staying airside – he is in Russia) so he might be best advised to accept the gag and enjoy Moscow's hospitality. Until, perhaps, a new government in Germany after its September elections offers him a platform if he turns up as a refugee, whereupon he could take a tramp steamer to Hamburg.

In the meantime, states should start considering the impact of the information he has revealed so far. It was, ironically, the White House that last year called for an international convention to regularise "consumer data privacy in a networked world". There is no international standard for permissible periods of data retention, for what data can be retained or to whom data can be released. Western democracies differ in modes of protection. Canada, Germany and Australia require warrants from independent judges; the US from judges in a secret security court whose record shows them to be rubber stamps. In Britain ministers lack the time or ability to assess the warrants they routinely sign. France is even worse – the prime minister's office can authorise "national security" interceptions with no oversight.

Does this mean that the possibility intelligence services might find a terrorist needle in a data haystack justifies abandoning any hope of effective privacy regulation? Foreign secretary William Hague, who is in political charge of GCHQ, seems to think so: "Law-abiding citizens have nothing to fear." But it is precisely law-abiding citizens who have had careers ended by dissemination of secret state surveillance. Ironically, it has been suggested that one victim of the NSA's metadata search machine was none other than the CIA director General Petraeus – guilty, at least in American eyes, of adultery.

Snowden is not a "traitor", and nor does he deserve to be prosecuted as a "spy". These laws have no public interest defence, and until they do any European country that surrenders him to end his life in an American supermax prison would be in breach of the free speech guarantee of the European convention of human rights, which is meant to protect those who release information of importance to democratic debate.

Edward SnowdenEspionageRussiaEuropeAir transportHuman rightsUnited StatesGeoffrey Robertson
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David Cameron should reject both press charters and opt for an ombudsman

Politicians and newspapers are wrong to accept Leveson as holy writ – and both their proposed systems threaten free speech

What is the reading public to make of the Mexican stand-off between politicians and the press? Each has produced a royal charter to regulate the behaviour of journalists, which threaten up to £1m in fines and even more in "exemplary damages" with forced front-page apologies for breaches of taste or privacy. Both claim to implement the recommendations of Lord Justice Leveson – one by law, the other by industry agreement. But both threaten free speech and neither will encourage the adventurous investigative journalism needed to expose the corruption and hypocrisy of the powerful.

What is remarkable about the current conflict is the way the Leveson report is being treated by both sides as holy writ – Ed Milliband promised to implement it before he had even read its 1,900 pages. Moreover, Leveson is a judge, a fine one certainly, but in Britain judges have a poor record in protecting free speech. Remember how the law lords banned Spycatcher after it was published everywhere else in the world? And how they imposed so many sexist superinjunctions, gagging women who wanted to tell the truth about heartless lovers? Or how they insisted on protecting the likes of Barclays bank and the manufacturers of the foetus-deforming drug thalidomide against exposure by investigative journalists? They once even condemned as a criminal a public-spirited solicitor who showed court documents about mistreatment of prisoners to a journalist – the solicitor in question being the young Harriet Harman. It took the European court to reverse the judicial assaults on free speech in the Harman and thalidomide cases and it is likely to be called on again if either of these charters receives royal assent.

Take, for example, their plans to make newspapers publish grovelling apologies when the regulator thinks they have erred. A forced apology is not only a contradiction in terms (apologies should be sincere) but is actually a denial of free speech precisely because it is forced speech and it is false speech. It should never be the role of a regulator in a democratic society to force editors to publish apologies in which they do not believe.

That was one Leveson recommendation which I flatly rejected when asked by the government of Mauritius to prepare a similar report about that country's media. I also rejected the unjust idea of obliging newspapers to pay the costs of cases brought against them unsuccessfully, merely because they had declined to join a regulatory body. Editors who stand behind their story and prove its truth against dishonest claimants should be entitled to all their costs: to force them to pay the legal costs of the other side is a miscarriage of justice. So too is the plan to impose "exemplary damages" on small circulation magazines that refuse – for good reason – to sign up to be regulated. These damages might run into millions and could force the closure, not only of Private Eye, but of valuable political journals such as the New Statesman and Standpoint. The proposal that editors would face fines of up to £1m, which features in both charters, is wrong in principle; fines should only be imposed by a court, and not by a group of amateur worthies that both charters install (in different ways) as "surveyors of the press". These Leveson recommendations would turn free speech into expensive speech.

But of course the press needs some regulation. That is shown by the allegations of massive criminality against those who ran the News of the World, and who are accused of authorising payments to hack the phones of anyone whose secrets might be saleable. The suspects will soon be put on trial and if convicted, prison sentences will deter newspapers tempted in future to breach the law. Thanks to the European convention we now have a civil law against invasion of privacy and the prospect of damages and legal costs provides a disincentive to media intrusions which are not in the public interest. Regulation beyond these laws is required as a means of monitoring the accuracy of media reporting, to enable the public to complain about falsehoods or bias in the presentation of news and to ensure that newspapers which criticise individuals should allow them a right of reply. Regulation, in other words, should serve the interests of truth and of fairness, and go no further.

The best means of securing a speedy and inexpensive correction of false news is not by the cumbersome methods laid down in the charters, but by the tried and tested mechanism of an ombudsman, empowered to mediate disputes and, if unsuccessful, to hear evidence and decide whether the complainant should have a remedy by way of an order for correction or a right of reply. In contested cases the ombudsman would give a reasoned adjudication, a summary of which might also be ordered to be published, with a prominence that would draw it to the attention of readers who would otherwise have been misled. My report rejected the imposition of fines, but made provision for successful complainants to be reimbursed for expenses and to compensated for any loss actually suffered. The ombudsman could also deal with seriously damaging posts on social media (a problem neglected by Leveson), providing on their own website an adjudication that would authoritatively nail the lie.

Statutory underpinning, as Leveson rightly found, is necessary if any form of regulation is to be effective and to enjoy public confidence. The ombudsman's office would be established by law, but with powers that no one could rationally argue would impinge on freedom of expression. It would have the power to order publication of adjudication – and if a newspaper thought the decision was wrong it could challenge it by way of judicial review. This would avoid the worst consequence of an anachronistic royal charter, namely the perception abroad that the British press is controlled with the approval of the head of state – a green light for other governments, especially in the Commonwealth, which are looking for an excuse to impose oppressive state control on their media.

The only workable form of press regulation that can achieve public confidence is one that is entirely free both of political influence and of media interests. For that reason the ombudsman must have no political or industry ties, and an office staff with experience at investigating and fact finding. He or she should be responsible to a body on which editors are represented but are not in the majority – a body that is responsible for keeping the code of conduct up to date, for organising ethical training for journalists, and (importantly) for speaking out against threats to press freedom from whomsoever they come – MPs, local councils, media proprietors or (and in particular) judges.

David Cameron says that his mind is still open and he is prepared to look at the charter offered by newspaper interests as well as the charter that politicians agreed in Harriet Harman's office in the early hours of the morning. He should remember that readers want regulation that is independent both of politicians and of the press and for that reason reject both charters in favour of an ombudsman system that cures abuses of free speech by the simple expedient of ordering more speech.

• Geoffrey Robertson QC is author of Robertson and Nicol on Media Law

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The UN should put North Korea in the dock at The Hague | Geoffrey Robertson

The UN should treat Kim Jong-un's threat as a crime against humanity, and refer it to the ICC

North Korea's threat to launch a pre-emptive nuclear strike on the US need not be taken seriously – yet. But it has the bomb (in fact 12, by reliable estimate) and ballistic missiles, and it will take only a few years to design a nuclear warhead and a re-entry heat shield for the drop on Hollywood. By then Iran may have the bomb, as well as Saudi Arabia, and perhaps even Egypt. We will, by that time, feel nostalgic for the good old days of the cold war. So what do we do, other than wait for when the American president decides to carpet-bomb Pyongyang?

North Korea's threats have served to expose the fatal flaw in the nuclear non-proliferation treaty. This was negotiated after the Cuban missile crisis with the object of limiting nuclear weapons to five great, or at least sensible, superpowers which would, one fine day, agree on reducing their arsenals to zero.

North Korea reluctantly joined the NPT in 1985, but withdrew again in 2003. The UN security council should never have allowed this – the treaty does not permit withdrawal unless membership jeopardises a party's "supreme interests". North Korea just wanted to build bombs without interference by the International Atomic Energy Agency. It did so, testing its first bomb on American Independence Day, 4 July, in 2006.

Back in 1994, when it was discovered that North Korea had furtively amassed enough plutonium for two bombs, Bill Clinton's administration seriously considered invasion but was horrified at the estimated cost: $100bn and a million casualties. War was averted by the diplomacy of Jimmy Carter, who negotiated an "agreed framework", which soon collapsed and was later replaced by "six-party talks", which have stuttered on for the past 10 years. Meanwhile the military has kept processing uranium and testing missiles.

More sanctions will not deter North Korea from proceeding towards delivering upon its threats. It has suffered increased sanctions after every provocative act, and even China now votes for them in the security council. US bombing of its cities or its nuclear facilities, even with China's acquiescence, would result in bloody reprisal attacks.

There are two ways the security council can proceed. One is emollient: give North Korea what, behind all the bluster, it really wants, namely readmission to the NPT as the sixth (or seventh, behind India) nuclear weapon power. That has already been rejected by John Kerry, and would be resisted by other states. It may, however, be the only way, short of military force, to restrain this impossible state. Readmission to the NPT with that status would at least impose on it an eventual duty to disarm (albeit a duty on which, without invasive IAEA inspections, it might cheat).

The other option is to treat North Korea's threat of nuclear war as a crime against humanity, and to refer its behaviour to the international criminal court prosecutor for investigation and potential indictment of Kim Jong-un and his generals.

Using or threatening to use nuclear weapons was declared a crime against humanity by the UN in 1984, while in 1996 the international court of justice ruled that "the threat or use of nuclear weapons would generally be contrary to the rules of (international) law", other than in "extreme circumstances of self-defence", which do not apply to North Korea's current threats of first use.

Dropping or threatening to drop a nuclear weapon is illegal because fallout does not discriminate between military targets and civilians, because the consequences are beyond human control, because the suffering it causes is immense and unnecessary. As the ICJ has said: "The destructive power of nuclear weapons cannot be contained in either space or time." It breaches the two most fundamental human rights, the right not to have life taken arbitrarily and the right not to be subjected to torture, in this case, by ionising radiation.

The international criminal court at The Hague has for the past decade been cutting its teeth on issues of no great legal pith – atrocities, certainly, but essentially murders and incitements to murder. It has hardly begun to fulfil its purpose, because its indictments have been confined to local African politicians and warlords. An international court should be dealing with international criminals. Those who unlawfully make, manufacture or threaten to use nuclear weapons are the most dangerous international criminals of all.

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Yulia Tymoshenko is Europe's Aung San Suu Kyi | Geoffrey Robertson

Ukraine's still-Stalinist judiciary was used to destroy the former prime minister. Now the United Nations will hear of her plight

Yulia Tymoshenko, heroine of the "orange revolution" and the only woman ever to achieve prime ministerial office in the former Soviet republics, is not allowed to stand in Ukraine's current national election. For the last 15 months she has been in prison, convicted for actions that would not amount to a crime in any other democracy. She is subjected to the grossest invasion of her privacy (almost every movement she makes is videoed) and constantly defamed by the president and his tame prosecutors. Europe seems to have abandoned her; but tomorrow, at the UN's human rights committee, the UK can bring her situation to the world's attention.

Her innocence of any real crime is clear from the judgments at her trial and final appeal. She was convicted of the vague charge of "abuse of office" by reaching a deal with Putin which resolved a gas crisis in January 2009 that risked causing deaths in central Europe. Russia had cut off gas to Ukraine – and through it, to a number of countries – and was going to continue doing so unless transportation charges were increased. With the encouragement of the EU and Angela Merkel, Tymoshenko flew to Moscow and reached a compromise.

Her opponents thought she should have held out for better terms. The issue was fully canvassed over the next few months in the presidential election, in which she was narrowly beaten by Viktor Yanukovych (winner of the rigged 2004 election that the orange revolution overturned).

An example of functioning democracy, you might think. But not in Ukraine, where Tymoshenko was then prosecuted. It was not suggested she had made a penny out of the gas deal, or had been dishonest or criminal in any accepted sense of that word. Her crime, according to her judge, was that she had "acted in her personal interests, desiring to create for herself the image of an efficient leader of its state who could deal with the gas crisis shortly before the presidential elections". In other words, she had acted as any other populist leader in a democracy – she had resolved a crisis, then submitted herself and her conduct to the electorate. The charge had been used by the regime to silence a political opponent.

Ukraine maintains the Stalinist system whereby the prosecution service (its top officials appointed by the president) controls the courts. Its judges have no independence. This can be proven by a single statistic: the conviction rate in criminal cases is an incredible 99.8%. On his appointment, Tymoshenko's prosecutor, Viktor Pshonka, declared himself "on the president's team" and his deputy appears regularly on TV to defame her. If judges rule against the prosecution in a political trial, it then prosecutes them for the offence of being untrue to their oath. They do not have tenure until they serve loyally for five years. As European human rights officials point out, this sword of Damocles makes these "P-plate judges" do whatever the prosecution wants.

The Tymonshenko trial is a classic example. Her judge, only two years in office, was plucked from a small town court and given the most important trial in Ukraine's history. He showed his colours (they were not orange) by a brutal and unnecessary decision, early in the trial, to put Tymoshenko in prison. Her sentence – seven years and an order to pay $186m – was calculated to destroy her. And all for acting as a prime minister should, to avert a humanitarian crisis in central Europe.

Once, Stalinist systems delivered "telephone justice" – a call to the judge from the party boss. In Ukraine today, it is "megaphone justice": the president and his prosecutors publicly declared Tymoshenko guilty before her trial, and a lickspittle judge then did their bidding.

The Council of Europe has passed motions condemning her treatment but has done nothing to sanction her persecutors or to suspend Ukraine's membership. When Britain speaks at the UN, it must make clear that Yulia Tymoshenko has become Europe's Aung San Suu Kyi.

Yulia TymoshenkoUkraineEuropeRussiaHuman rightsUnited NationsGeoffrey Robertson
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Yulia Tymoshenko is Europe's Aung San Suu Kyi | Geoffrey Robertson

Ukraine's still-Stalinist judiciary was used to destroy the former prime minister. Now the United Nations will hear of her plight

Yulia Tymoshenko, heroine of the "orange revolution" and one of the few women ever to achieve prime ministerial office in the former Soviet republics, is not allowed to stand in Ukraine's current national election. For the last 15 months she has been in prison, convicted for actions that would not amount to a crime in any other democracy. She is subjected to the grossest invasion of her privacy (almost every movement she makes is videoed) and constantly defamed by the president and his tame prosecutors. Europe seems to have abandoned her; but tomorrow, at the UN's human rights committee, the UK can bring her situation to the world's attention.

Her innocence of any real crime is clear from the judgments at her trial and final appeal. She was convicted of the vague charge of "abuse of office" by reaching a deal with Putin which resolved a gas crisis in January 2009 that risked causing deaths in central Europe. Russia had cut off gas to Ukraine – and through it, to a number of countries – and was going to continue doing so unless transportation charges were increased. With the encouragement of the EU and Angela Merkel, Tymoshenko flew to Moscow and reached a compromise.

Her opponents thought she should have held out for better terms. The issue was fully canvassed over the next few months in the presidential election, in which she was narrowly beaten by Viktor Yanukovych (winner of the rigged 2004 election that the orange revolution overturned).

An example of functioning democracy, you might think. But not in Ukraine, where Tymoshenko was then prosecuted. It was not suggested she had made a penny out of the gas deal, or had been dishonest or criminal in any accepted sense of that word. Her crime, according to her judge, was that she had "acted in her personal interests, desiring to create for herself the image of an efficient leader of its state who could deal with the gas crisis shortly before the presidential elections". In other words, she had acted as any other populist leader in a democracy – she had resolved a crisis, then submitted herself and her conduct to the electorate. The charge had been used by the regime to silence a political opponent.

Ukraine maintains the Stalinist system whereby the prosecution service (its top officials appointed by the president) controls the courts. Its judges have no independence. This can be proven by a single statistic: the conviction rate in criminal cases is an incredible 99.8%. On his appointment, Tymoshenko's prosecutor, Viktor Pshonka, declared himself "on the president's team" and his deputy appears regularly on TV to defame her. If judges rule against the prosecution in a political trial, it then prosecutes them for the offence of being untrue to their oath. They do not have tenure until they serve loyally for five years. As European human rights officials point out, this sword of Damocles makes these "P-plate judges" do whatever the prosecution wants.

The Tymonshenko trial is a classic example. Her judge, only two years in office, was plucked from a small town court and given the most important trial in Ukraine's history. He showed his colours (they were not orange) by a brutal and unnecessary decision, early in the trial, to put Tymoshenko in prison. Her sentence – seven years and an order to pay $186m – was calculated to destroy her. And all for acting as a prime minister should, to avert a humanitarian crisis in central Europe.

Once, Stalinist systems delivered "telephone justice" – a call to the judge from the party boss. In Ukraine today, it is "megaphone justice": the president and his prosecutors publicly declared Tymoshenko guilty before her trial, and a lickspittle judge then did their bidding.

The Council of Europe has passed motions condemning her treatment but has done nothing to sanction her persecutors or to suspend Ukraine's membership. When Britain speaks at the UN, it must make clear that Yulia Tymoshenko has become Europe's Aung San Suu Kyi.

• This article was amended on 24 October 2012. The original said incorrectly that Tymoshenko was the only woman ever to achieve prime ministerial office in the former Soviet republics.

Yulia TymoshenkoUkraineEuropeRussiaHuman rightsUnited NationsGeoffrey Robertson
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Extradition of Abdullah al-Senussi is a blow to international justice | Geoffrey Robertson

Muammar Gaddafi's spy master should have been tried at the international criminal court which indicted him last year

The extradition of Abdullah al-Senussi, Gaddafi's spy master, from Mauritania for trial in Tripoli is a blow to international justice – and to the government's pretended support for it. Although one of the worst men left in the world, Senussi should have been tried, first and fairly, at the international criminal court (ICC) which indicted him last year.

Afterwards, there are claims from France (where he was convicted in absentia for organising the bombing of a UTA passenger plane) and he should face questioning over his role in Lockerbie. Instead, without a murmur of protest from Britain or the UN security council, he has been returned to Libya where he will receive not justice, but revenge.

Not that he is undeserving of punishment if found guilty of domestic crimes – notably the mass murder of 1,200 prisoners at Abu Salim jail in 1996. However, Libya is under an international duty to co-operate with – ie give precedence to – the ICC, a duty that it has breached in the case of Saif Gaddafi and will breach again with Senussi.

The reason, of course, is the death penalty. Libya wants to see both men at the end of a rope. The ICC cannot execute and could not properly send them back to Libya after trial in The Hague without an undertaking that he would not be strung up. So Libya, with the connivance of Interpol (whose red notice system is abused by vengeful governments) got hold of Senussi first, for a trial that will be about as fair as that of Saddam Hussein, and which will doubtless end in the same way.

These cases expose a design fault in the ICC. It is meant to be a court of last resort, leaving international criminals to their fate in their own country unless trial there is impossible. After a revolution, trial is always possible but fair trial usually is not. New governments want to execute old leaders as quickly as possible. There is overwhelming prejudice, usually a new set of judges hand-picked by the victors, and a public eager to see their past tormentors on the gallows. When the ICC indicts a political or military leader it contributes to their fall (as it did in the cases of Milosevic and Colonel Gaddafi) and has a moral duty to protect them from an unfair local trial and consequent death sentence.

But the ICC cannot even protect its own lawyers in Libya – that government's unfitness to try Saif Gaddafi was demonstrated when it defamed Melinda Taylor, an ICC defender captured by the militia that was holding her client. He goes on trial this month, apparently, and it will be a sorry end for Nato's intervention when these two men are topped while the murderers of Colonel Gaddafi are free and fêted.

So what did the British government do to ensure that international justice ran its proper course? Absolutely nothing. The Libyan prime minister visited Mauritania to lobby its government successfully. The UK made no effort to press for him to be sent to The Hague, where he should have been interviewed about Lockerbie (he was Abdelbaset al-Megrahi's boss and so more guilty than he was, if he was guilty). As a permanent member of the security council, the UK had a duty to make sure Libya complied with resolution 1970, which places upon it an obligation to co-operate with the ICC prosecutor.

We have become too blasé about death sentences on our enemies – the murder of bin Laden and of drone victims, and executions after biased trials – like that of Saddam. Hague has been threatening Assad and his relatives with an ICC indictment, but this is not much of a threat if the Free Syrian Army is ever in a position to put them on what it may call a "trial" (which would be as speedy as that of Ceaucescu). The British government must insist that both Senussi and Gaddafi be delivered to The Hague, on pain of sanctions for breach of resolution 1970.

However much it may be an irony that the ICC protects fallen tyrants from the death they once decreed for thousands of their subjects, international justice must pursue its commitment to fair trial. Once indicted, a defendant should be prosecuted by his own country only if his trial can be fair and his fate, at worst, imprisonment for life.

Geoffrey Robertson QC is author of Crimes against Humanity (Penguin)

Muammar GaddafiLibyaMiddle East and North AfricaAfricaMauritaniaFranceEuropeLockerbie plane bombingGlobal terrorismUK security and terrorismScotlandAir transportForeign policyGeoffrey Robertson
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Britain must end its sordid treatment of the Chagossian people now | Geoffrey Robertson

That the US could use the Chagos Islands to bomb Iran is another good reason why the UK must restore them to Mauritius

David Cameron met Navin Ramgoolam, the prime minister of Mauritius, today. It appears they discussed what Robin Cook called "one of the most sordid and morally indefensible" episodes in our postwar colonial history: namely the deceitful treatment of the Chagossian people. Ramgoolam told a Guardian reporter that the meeting was "very cordial" so perhaps there is now hope Britain will finally mitigate its complicity in an international crime – that is, the use of Diego Garcia for torture and rendition – and prevent any involvement of the UK if the US uses it to launch an attack on Iran in the future. The Chagos archipelago should be restored to its rightful owner.

That owner is Mauritius, of which the Chagos Islands were always part, ceded to the UK by France in the 1814 treaty of Paris. When decolonisation was ordered by the UN in the 1960s, it came with the international law requirement that the whole of a colonial territory should be granted independence. But the US wanted the islands for a cold war base and secretly offered the Wilson government a discount on Polaris missiles if it excised Chagos from Mauritius and got rid of the Chagossians.

So Britain lied to the UN, pretending that there were no permanent inhabitants on the islands – the 2,000 Chagossians, settled there for almost 200 years, were described as "itinerant labourers". Then, claiming ownership of the archipelago, Britain deported them to Mauritius and leased all the islands to the US until 2016, allowing construction of a naval base on the largest one, Diego Garcia. So should this lease – for which the UK receives no rent – be renewed?

The first problem is that the UK may not own the Chagos archipelago: an international court would be likely to find that it has unlawfully taken this property from Mauritius. Although Mauritius wants its claim adjudicated, the UK refuses to arbitrate and has excluded recourse to the international court of justice. Successive UK governments say they are confident they have sovereignty, but they are afraid to have the question authoritatively decided.

Then there is the solemn promise made when Mauritius became independent, that Chagos would "revert" or "be returned" to Mauritius in 50 years, if it was no longer required for UK defence needs. The UK now has no conceivable need to occupy the Chagos Islands for its own defence and Diego Garcia is only of strategic interest to the US – it was used to launch the 2003 bombing of Baghdad and is the closest base if the US were to decide to attack Iran's nuclear facilities. The possibility of this would be one good reason for the UK to shed all responsibility for Diego Garcia.

That island has been used as a transit to torture. It is widely surmised that US naval vessels berthed there have been one location for the waterboarding of terrorist suspects. In 2008 the then foreign secretary, David Miliband, was forced to admit to parliament (it had previously been denied) that the base had been used at least twice by the Americans for illegal rendition. Even this admission, however, was incomplete: it is now clear from documents found in the Libyan foreign ministry that MI6 arranged for an anti-Gaddafi dissident to be "rendered" through Diego Garcia to torture in Tripoli in 2004. This means the UK has not merely turned a blind eye to the unlawful use of the island by the US. In law it is as guilty as any landlord who knowingly permits his premises to be used for criminal purposes by his tenant – all the more so when he joins in committing the crime.

If this were not enough morally to disentitle the UK to hold on to Chagos, there is a judgment to be delivered later this month by the European court of human rights which may require it to permit the Chagossians to return. They succeeded in their claim for this relief in the high court (two judges) and the court of appeal (three judges) but lost two to three in the Lords. There is a reasonable prospect they will win in the European court, which will impose an obligation on Britain to facilitate their return to the islands. The UK cannot discharge that obligation while the US refuses to permit Chagossians to return to live in their own homes.

Cameron can cut this Gordian knot by agreeing that sovereignty over the archipelago should henceforth repose in Mauritius, its rightful owner, and where most of the Chagossians still live. Mauritius is a modern democracy that has no truck with torture, and although the US would doubtless persuade it to grant a new lease for the naval base, there would be guarantees against it being used again for rendition, and a substantial rent that could fund the return of Chagossians to other islands in the group at least. The UK has long shown itself unworthy to possess this territory. Do we really want to give our tenants permission to use it if they decide to bomb Qom?

• Geoffrey Robertson QC's full legal opinion on the Chagos question can be found in Volume 36, No. 1 of the University of Western Australia Law Review (June 2012). See: geoffreyrobertson.com/links.htm

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Chagos IslandsUS foreign policyMauritiusDavid CameronUS militaryIranDavid MilibandUnited StatesAfricaMiddle East and North AfricaForeign policyGeoffrey Robertson
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