Geoffrey Robertson's Blog, page 7

A diplomatic iniquity: Geoffrey Robertson

Legal immunity is an anachronism. Embassy staff should no longer be able to dodge justice

From mass murder to the congestion charge, gambling debts, shop-lifting and sex trafficking, thousand of London residents are utterly exempt. They have "diplomatic immunity", and this is not confined to diplomats: it covers most embassy officials, their spouses and children. This week the foreign secretary revealed the latest list of "friendly" countries, from Sierra Leone to Saudi Arabia, that have played this "don't go to jail at all" card to save their embassy staff from prosecution for serious offences. It is time to reassert the rule of law over a class of persons who are a lot less important than they think.

The notion that representatives of foreign powers should have special protection goes back to the herald on Homer's battlefields. Immunity for diplomats served a purpose in the cold war, when they risked blackmail and honeytraps and might otherwise have faced false charges in rigged courts. For this reason the Vienna Convention in 1961 guaranteed the total inviolability of embassy premises and personnel.

But a heavy price has been paid for that impunity: guns and drugs have often been smuggled in diplomatic bags, and at one point Scotland Yard estimated that 40% of London's shoplifting and parking offences were committed by the wives and cars of diplomats. More seriously, there was the Libyan diplomat who murdered PC Yvonne Fletcher: he was escorted to Heathrow, rather than to the Old Bailey, and the smoking gun left the UK in his inviolable baggage.

In 1961 there was no alternative to the courts of the countries where embassy officials served. But today we have a developing system of international criminal courts, whose judges could provide an independent and unbiased alternative. (They have international prisons as well, if objection is taken to the condition of local jails). It is time for the Vienna Convention to be renegotiated to end impunity by requiring all credible and serious charges (carrying a 10-year plus maximum sentence) levelled against diplomats and their families and retainers to be tried – either by waiving immunity, or electing to have them dealt with in an international court or ad hoc tribunal (eg judges from the local and sending states, with a UN judge presiding).

Until this can be achieved, the FCO must take the problem of criminal diplomats much more seriously than in the past, where details of immunity claims have had to be extracted by parliamentary questions. Any country that chooses to protect an embassy official against prosecution must be treated with the contempt it deserves: its ambassador should be carpeted, any aid budget reviewed, and full details of charges and evidence released to the media in this country and in the country of the diplomat's nationality. In the case of countries such as Sierra Leone (which, quite disgustingly, has just stopped the UK prosecution of one of its diplomats for sex trafficking) we should actually threaten to withhold aid until the alleged offender's immunity is waived.

This approach would work wonders for the payment of parking tickets and other motoring fines. Some years ago the US threatened to deduct the total of unpaid parking fines run up by each embassy in Washington from its country's foreign aid allocation. Most embassies paid up immediately.

The problem with the congestion charges unpaid by the likes of America and Japan must be handled differently. These countries claim that the charge violates the Vienna Convention, but hypocritically refuse to have the issue decided by a British court, or referred to the international court of justice in The Hague. The answer is for Boris Johnson, the London mayor, to seek a declaration in the high court that the inviolability of an embassy's premises has nothing to do with the route taken by its limousines, and for Mr Hague to take them, no pun intended, to the Hague.

The immunity that once served to keep communications open is hardly necessary in the age of the email and video link. Diplomats and their dependants should no longer prove an exception to the rule of law.

CrimeSierra LeoneGeoffrey Robertson
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The UN must try Iran's 1988 murderers | Geoffrey Robertson

The mass murderers of 1988 now hold power in Tehran. The world must make them face justice

This weekend marks the first anniversary of the death of democracy in Iran – the rigged election which the Supreme Leader Ayatollah Ali Khamenei declared lost by reform candidate Mir Hossein Mousavi. Afterwards protesters were shot dead in the street and taken for torture to Tehran's notorious Evin prison; several have been hanged as mohareb – enemies of God. This intolerance of dissent should have come as no surprise: this is the same regime that got away with the murder of thousands of political prisoners – and has never been called to account.

It happened in the summer of 1988, after the war with Iraq ended in a bitter truce. Iran's prisons were full of students sentenced for protesting against Ayatollah Khomeini in the early 1980s – Marxists and leftists of all varieties and supporters of the Mujahedin-e Khalq Organisation – a guerrilla movement with a different version of Islam. They had been sorted by prison officials into groups of those who remained "steadfast" in their political beliefs or who were apostates. The regime decided they should be eradicated so they would not trouble the postwar government, and Khomeini issued a secret fatwa authorising their execution.

Revolutionary guards descended on the prisons and a "death committee" (an Islamic judge, a revolutionary prosecutor and an intelligence ministry official) took a minute or so to identify each prisoner, declare them mohareb and direct them to the gallows erected in the prison auditorium, where they were hanged six at a time. Later their bodies were doused in disinfectant and transported in meat trucks to mass graves. Their belongings were returned in plastic bags to their families three months later, but the regime still refuses to reveal the location of the graves and continues to forbid relatives from gathering at one site which has been identified in a Tehran cemetery.

Comparisons between atrocities are invidious, but this involved almost as many casualties as Srebrenica and was a cold-blooded killing by the state of prisoners after the war had ended. It bears some comparison to the death marches of allied prisoners at the end of the second world war – the Japanese generals responsible were sentenced to death at the Tokyo trials. So who was responsible for the Iranian prison slaughter?

Ayatollah Khomeini is dead. But the three leading figures of his regime are still very much alive, and available to be put on trial in an international court. The then president, Ali Khamenei, is now Iran's Supreme Leader – the man who endorsed last year's rigged election. Ali Rafsanjani, still a powerful political player, was then the commander of the Revolutionary Guard, who were ordered to carry out the killings. Then there is the man who in 1988 was Iran's prime minister – Mir Hussein Mousavi, today's reform movement leader.

Mousavi was challenged at election meetings last year by chants of "1988" but has declined to tell what he knows of the mass murder. In the course of an inquiry conducted for the US-based Abdorrahman Boroumand Foundation I have come across an interview he gave to Austrian television in December 1988. In answer to allegations Amnesty International was making, he dishonestly said the prisoners were planning an uprising: "We had to crush the conspiracy – in that respect we have no mercy." He appealed to western intellectuals to support the right of revolutionary governments to take "decisive action" against enemies. It is an irony that the regime he defended with such hypocrisy now crushes his own supporters without mercy.

But this is what happens when political and military leaders are vouchsafed impunity. The UN did not bother about Saddam Hussein's use of poison gas at Halabja earlier that year, and it turned a deaf ear to Amnesty reports about the prison slaughter (Iranian diplomats claimed the deaths had occurred in battle). But there is no statute of limitations on prosecuting crimes against humanity, and the mass murder of prisoners already serving sentences for political protests must count as one of the gravest of unpunished crimes. The fact that they were killed ostensibly because they did not believe in God – the God of the ayatollah's revolution – makes their slaughter a form of genocide: the destruction of a group because of its attitude to religion.

Most of the judges and officials who implemented the fatwa are still in high office in Tehran – under a supreme leader who, when asked about killing prisoners replied: "Do you think we should have given them sweets?" There is still time for the UN security council to enforce international law by setting up a court to try the perpetrators of the prison massacres. This may be a better way to deal with a theocracy whose behaviour in 1988 provides the best reason for concern over its future behaviour with nuclear weapons.

• Geoffrey Robertson QC's report The Massacre of Political Prisoners in Iran 1988 can be downloaded here.

• This article was amended on 8 June 2010. Due to an editing error, the
original incorrectly described the MKO – Mujahedin-e Khalq Organisation – as "a guerrilla sunni-Marxist movement". This has been corrected.

IranAyatollah Ali KhameneiMir Hossein MousaviInternational criminal courtThe Iranian revolutionReligionMiddle EastInternational criminal justiceGeoffrey Robertson
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Gary McKinnon: a test case for principles | Geoffrey Robertson

Now Tories and Lib Dems who condemned the absurd pursuit of Gary McKinnon can save him

The first acid test for Britain's new government is not the economy, but whether it is capable of an act of simple humanity. Can Theresa May deliver on the repeated promise of Tory and Lib Dem leaders to end the torment inflicted by the state on Gary McKinnon, the hacker with Aspergers, whom the Home Office wants to send to lengthy imprisonment and likely suicide in a US jail? His court room cruelty is scheduled to begin again on 24 May: the time has come to end it, once and for all.

In 2002, from a council flat and with a battered first-generation laptop, McKinnon hacked into US army computers with a gusto and brilliance attributable to his Asperger's. He left a polite message of political protest against the post-9/11 Bush administration: "US foreign policy is akin to government-sponsored terrorism these days." He did not realise that the damage he was causing would amount to £350,000. He could (and should) have been tried for criminal damage in Britain, where a similar case (that of the Datastream Cowboy, accused of "doing more damage to the Pentagon than the KGB") ended with a non-custodial sentence. Instead, the Virginia state prosecutors lay in wait for two years until the Extradition Act was changed, and then demanded the UK surrender McKinnon for what the courts accept will be an 8 to 10-year prison sentence.

On any view, this punishment would be cruel and disproportionate, but the Home Office was unmoved. Jacqui Smith, quite disgracefully, refused to give McKinnon even the benefit that Britain insisted on for the Natwest Three, namely bail when extradited to the US, and the right to serve part of the sentence in the UK. It was then that a leading expert on Asperger's, Dr Simon Baron-Cohen, diagnosed McKinnon's condition and reported that he was likely to take his own life if extradited. But that did not bother the Home Office.

It was not that Alan Johnson was incapable of doing the right thing, he was just incapable of working out how to do it. The problem was that parliament in the 2003 act had foolishly limited the home secretary's discretion to refuse extradition to the US to punishment that was "inhuman and degrading". These are the weasel words of the European Convention, which cannot apply to Americans (who are not inhuman) or to their prisons, which are no more degrading than ours.

But the uncivil servants intent on harrying McKinnon out of the country have entirely forgotten that Britain has its own bill of rights, forged in the glorious revolution of 1689 and forbidding punishment that is "cruel and unusual" (a reaction to the indignities heaped on Titus Oates). This law should today protect UK citizens against sanctions that are over-severe by British standards or which can cause a vulnerable individual exceptional mental anguish. A 10-year sentence in a foreign jail, imposed on a suicidal man whose crime, driven by an undiagnosed mental condition, would, if prosecuted here, almost certainly receive a merciful suspended sentence, is about as cruel and unusual as it can get.

Nick Clegg and Chris Huhne said so, repeatedly, during the election campaign. Last year, all the senior Tories agreed, especially David Cameron ("I am deeply saddened and worried about Gary McKinnon ... I simply see no compassion in sending him to America"); Damian Green ("illegal ... damaging to Britain ... and damaging to a very vulnerable and sick man"); and of course Boris Johnson (who condemned the home secretary's decision as "brutal, mad and wrong"). His case was taken up in the media and was one reason why so many decent people disdained to vote Labour.

So, over to Theresa May. Her main difficulty will be to override her Home Office advisers who have for years fought an unremitting, expensive and merciless battle against this poor man and his indomitable mother. They will, perhaps, tell their minister that if she reverses the Smith-Johnson decision, the Americans might take her to court for judicial review. But this is unreal: the Obama administration is unlikely to challenge, on behalf of a local state prosecutor, a decision of the new British government. And even if it does, it is unlikely to be successful (the US-UK extradition treaty of 1976, has a special exception if extradition is barred by a domestic legal rule – the 1689 bill of rights, for instance). And even if the US were successful, parliament is sovereign and can sweep away any adverse court decision simply by passing the Gary McKinnon (Freedom from Extradition Act 2010), a measure that even the most hard-hearted Labour MP would be hard put to oppose.

Gary McKinnon, like Steig Larssen's girl with the dragon tattoo, is a rare and talented individual with Aspergers who should have been dealt with eight years ago, and compassionately, for reckless hacking. Yet Home Office officials (Orwell called them "the striped trousered ones who rule") are still out to get him. In court on 24 May they intend to cross-examine his doctors and argue that because "he has no history of serious self-harm or suicide attempts" European law cannot save him from ending his life in an American prison. That may be so. But British tradition, infused with Portia's admonition that mercy must always season justice, demands that his torment end. If Theresa May does not have the simple humanity to free Gary McKinnon, her party and its coalition partner were elected under false pretences.

Theresa MayUnited StatesGary McKinnonGeoffrey Robertson
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Put the pope in the dock | Geoffrey Robertson

Legal immunity cannot hold. The Vatican should feel the full weight of international law

Well may the pope defy "the petty gossip of dominant opinion". But the Holy See can no longer ignore international law, which now counts the widespread or systematic sexual abuse of children as a crime against humanity. The anomalous claim of the Vatican to be a state – and of the pope to be a head of state and hence immune from legal action – cannot stand up to scrutiny.

The truly shocking finding of Judge Murphy's commission in Ireland was not merely that sexual abuse was "endemic" in boys' institutions but that the church hierarchy protected the perpetrators and, despite knowledge of their propensity to reoffend, allowed them to take up new positions teaching other children after their victims had been sworn to secrecy.

This conduct, of course, amounted to the criminal offence of aiding and abetting sex with minors. In legal actions against Catholic archdioceses in the US it has been alleged that the same conduct reflected Vatican policy as approved by Cardinal Ratzinger (as the pope then was) as late as November 2002. Sexual assaults were regarded as sins that were subject to church tribunals, and guilty priests were sent on a "pious pilgrimage" while oaths of confidentiality were extracted from their victims.

In the US, 11,750 allegations of child sex abuse have so far featured in actions settled by archdioceses – in Los Angeles for $660m and in Boston for $100m. But some dioceses have gone into bankruptcy and some claimants want higher level accountability – two reasons to sue the pope in person. In 2005 a test case in Texas failed because the Vatican sought and obtained the intercession of President Bush, who agreed to claim sovereign (ie head of state) immunity on the pope's behalf. Bush lawyer John B Bellinger III certified that Pope Benedict the XVI was immune from suit "as the head of a foreign state".

Bellinger is now notorious for his defence of Bush administration torture policies. His opinion on papal immunity is even more questionable. It hinges on the assumption that the Vatican, or its metaphysical emanation, the Holy See, is a state. But the papal states were extinguished by invasion in 1870 and the Vatican was created by fascist Italy in 1929 when Mussolini endowed this tiny enclave – 0.17 of a square mile containing 900 Catholic bureaucrats – with "sovereignty in the international field ... in conformity with its traditions and the exigencies of its mission in the world".

The notion that statehood can be created by another country's unilateral declaration is risible: Iran could make Qom a state overnight, or the UK could launch Canterbury on to the international stage. But it did not take long for Catholic countries to support the pretentions of the Holy See, sending ambassadors and receiving papal nuncios in return. Even the UK maintains an apostolic mission.

The UN at its inception refused membership to the Vatican but has allowed it a unique "observer status", permitting it to become signatory to treaties such as the Law of the Sea and (ironically) the Convention on the Rights of the Child, and to speak and vote at UN conferences where it promotes its controversial dogmas on abortion, contraception and homosexuality. This has involved the UN in blatant discrimination on grounds of religion: other faiths are unofficially represented, if at all, by NGOs. But it has encouraged the Vatican to claim statehood – and immunity from liability.

This claim could be challenged successfully in the UK and in the European Court of Human Rights. But in any event, head of state immunity provides no protection for the pope in the international criminal court (see its current indictment of President Bashir). The ICC Statute definition of a crime against humanity includes rape and sexual slavery and other similarly inhumane acts causing harm to mental or physical health, committed against civilians on a widespread or systematic scale, if condoned by a government or a de facto authority. It has been held to cover the recruitment of children as soldiers or sex slaves. If acts of sexual abuse by priests are not isolated or sporadic, but part of a wide practice both known to and unpunished by their de facto authority then they fall within the temporal jurisdiction of the ICC – if that practice continued after July 2002, when the court was established.

Pope Benedict has recently been credited with reforming the system to require the reporting of priests to civil authorities, although initially he blamed the scandal on "gay culture". His admonition last week to the Irish church repeatedly emphasised that heaven still awaits the penitent paedophile priest. The Holy See may deserve respect for offering the prospect of redemption to sinners, but it must be clear that in law the pope does so as a spiritual adviser, and not as an immune sovereign.

CatholicismPope Benedict XVIVaticanChild protectionChildrenReligionUnited NationsGeoffrey Robertson
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Media inquiry ducked key reforms | Geoffrey Robertson QC

The parliament's culture committee has failed to see the wood for the legal trees

Politicians have had little inclination to reform media law. They have been intimidated by tabloid power from developing privacy protection for citizens, and they have been content with a plaintiff-friendly libel law because they are frequently plaintiffs. So let's give one cheer, at least, to the MPs on the culture, media and sport committee, who have tried to find a way through the tangled undergrowth of judge-made restrictions and "voluntary self-regulation" which affects the publication of what is, or should be, newsworthy.

Many of their recommendations are sensible and long overdue. The menace of libel tourism – when foreigners sue foreign papers here, to protect reputations they cannot defend at home – is deplored, and the abolition of ancient rules that threaten internet freedom is compellingly urged.

Superinjunctions, where judges suppress both the story and the news that a story has been suppressed, should be a thing of the past, and Messrs Sue, Grabbit and Runne should be disentitled to the massive success fees that have made Britain 100 times more expensive for media defendants than almost any other European country.

So far, so good. But in legal terms, this committee has failed to see the big picture. They have ducked the three major reforms necessary to make the media both free and accountable, namely the reversal of the burden of proof on defendants in libel cases, the introduction of a carefully defined tort (civil wrong) that would entitle juries to award damages for gross breaches of privacy, and the total and complete abolition of the Press Complaints Commission.

The reason why unmeritorious libel actions – or the threat of them – so often succeed, is because, alone in civil actions, the burden of proving the defence is placed on the defendant. This is wrong in principle, because any claimant who invokes the legal process puts the defendant – often a scientist or a human rights NGO – to great expense and inconvenience and should be able to prove, on the balance of probabilities, that he or she has a good case.

The committee irrationally rejects this crucial reform, because "Kate and Gerry McCann would have been required to prove that they had not allowed harm to come to their daughter". But they would have done this, like any claimant, simply by going into the witness box and asserting their innocence. Their evidence would be the proof that would prevail, so what is the problem for any genuine claimant who can satisfy a jury that it is more likely than not that he is telling the truth? The MPs on this point simply fail to understand how law works in practice.

The committee also misses the point when it comes to consider the need for a closely defined civil law to protect privacy. The present position is a mess: breach of confidence does not cover the worst cases; there is no jury trial and remedies offered by the PCC are valueless. The committee declined to grasp this nettle for no better reason than "the media industry itself is not united on the desirability of privacy legislation" – well, it wouldn't be, would it?

The most dangerous section of the report is that which deals with the PCC – the body financed by the press which pretends to supervise its ethics. The committee correctly concludes that it lacks credibility and authority. But instead of telling newspapers not to fund it and instead recommending a privacy law, the MPs said that it should be given vastly more power – indeed, more power than the courts already have – to punish newspapers with fines and even to ban their next edition. Oh that Milton should be living at this hour, to demonstrate yet again the absurdity of trying to license the press.

Under the present, judge-made law, the UK does not have free speech – it has expensive speech. The committee has come up with marginally useful recommendations, but has failed to see the wood for the legal trees. In the case of the PCC, for example, its remedies would prove far worse than the disease.

Media lawPress Complaints CommissionPrivacy & the mediaPrivacyGeoffrey Robertson
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A nobler, trickier path to justice for 9/11 | Geoffrey Robertson

Trial by jury for the September 11 suspects can mean justice is seen to be done. Yet calling for the death penalty is an error

The US attorney general, Eric Holder, deserves two cheers for his brave decision to bring the alleged 9/11 conspirators to an open trial in New York rather than to put them through a discredited military commission process. But his demand for the death penalty will be counterproductive: the obscene ritual of lethal injection will bestow on convicted defendants the martyrs crown they so desperately crave.

There will be some surmountable problems in ensuring a fair trial in New York, where 12 angry men – and women – may even now be too emotionally involved in 9/11 and its aftermath to consider the evidence dispassionately. There will be a strong case for a change of venue to another city, where US law which permits rational jury challenges can assist in weeding out pre-judgment.

This is a trial that must be seen to be fair – not only by the American media (which to judge from the questions at Holder's press conference has already made up its mind that the defendants are guilty) but throughout the world. Much will depend on the choice of judge, who must be conspicuously independent and of sufficient steel to reject evidence obtained by torture – there is no doubt that Khalid Sheikh Mohammed has been waterboarded.

The death penalty decision will ultimately be for the jury, and it can only be hoped that they will refuse to contemplate the spectacle of convicted defendants, spot-lit and stretched on a hospital trolley, in some auditorium which must by law be large enough to accommodate relatives of their victims. Does Holder plan to requisition a baseball stadium?

It would be a martyrdom beyond the wildest dreams of the most fanatical Islamic terrorist. There is one reassuring precedent – the jury trial in Virginia of Zacarias Moussaoui, who was alleged to be the "20th hijacker". The jury rejected the prosecution's overblown demand for his death, although the judge had unfairly allowed them to hear tapes of the last moments of Flight UA93 in order to inflame their prejudices.

There is, of course, a better solution. The 9/11 atrocity was, in international law, a crime against humanity and there is no doubt that the UN could have provided three international judges and the kind of trials currently being visited upon Charles Taylor and Radovan Karadzic. That would end not with one word from the foreman of the jury ("Guilty"), which will hardly convince doubters, but with a closely and carefully reasoned judgment setting out the case for guilt beyond reasonable doubt. But international courts cannot impose the death penalty and American attachment to this punishment is still unassailable.

A jury trial, though, is a full-blooded adversarial affair in which defendants can be aggressively defended and prosecution evidence tested for all to see its truth or falsity. Fears that Islamists will exploit the witness stand as a soapbox are unjustified: the issue will be whether they agreed to mass murder, and their political and religious beliefs will be irrelevant. The assumed danger of giving al-Qaida its day in court weighed too heavily on a vicious administration afraid of justice: Obama has taken the more difficult, but more principled, path.

It is regrettable that the non-9/11 defendants still in Guantánamo are to face military trial. It was Clemenceau who said that "military justice is to justice as military music is to music", and this still rings true, no matter how many changes Congress makes to the Bush administration's kangaroo courts. If jury trials are appropriate for the 9/11 conspirators, then they should be afforded to all prisoners whom American prosecutors wish to execute or to incarcerate for the term of their natural life.

September 11 2001al-QaidaGuantánamo BayUS constitution and civil libertiesObama administrationCapital punishmentGeoffrey Robertson
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Gaddafi getting away with murder | Geoffrey Robertson

Gaddafi's arrival in New York pours shame on the UN and Obama. There is one way to put it right

Tomorrow brings excruciating embarrassment for the United Nations. It will honour the worst man left in the world, who now devotes his time to thwarting its attempts to bring other international criminals to justice. Colonel Gaddafi will make a triumphant address to the assembled dignitaries (including a humiliated President Obama), unless a district attorney in New York arrests him for murder, or torture, or conspiracy to cause explosions – or for any of the various crimes against humanity committed during 35 of his 40 years of dictatorship.

Gaddafi gets away with murder because European nations, and the corporations that influence their governments (British Petroleum in the case of the UK), are desperate to share in his oil wealth, and because he buys off the relatives of his victims with "blood money" ($2.7bn for Lockerbie, $1m per family for a UTA passenger jet, and further millions for US victims of his supply of semtex to the IRA), accompanied by insincere apologies.

In Africa, his impunity is attractive to other corrupt or brutal rulers: in February, he was elected chairman of the African Union, and he has transformed this organisation into the main opponent of the international criminal court, guaranteeing to protect Omar al-Bashir from its arrest warrant over his alleged crimes in Darfur. Gaddafi has in the past ordered many assassinations of dissidents ("stray dogs") and sponsored terrorist groups reportedly ranging from Baader Meinhof to Abu Nidal – while his charity provides lavish compensation to the families of Palestinian suicide bombers.

The legal excuse for his untouchability is sovereign (or head of state) immunity, the Machiavellian doctrine that for centuries protected political and military leaders from any kind of accountability other than by forcible overthrow. But immunity is not what it used to be: the Pinochet decision, by Britain's highest court, held that ex-dictators could be liable for torturing their own people; and then the international court of justice held that courts set up by the United Nations could prosecute government ministers for mass murder. In due course Slobodan Milosevic went to trial, followed by Charles Taylor after the UN's court in Sierra Leone had upheld the issue of an arrest warrant at a time when he was still the head of Liberia. The particulars in this warrant, significantly, named Gaddafi as an "unindicted co-conspirator", accusing him of sponsoring Taylor and Foday Sankoh, the brutal rebel leader whose Operation No Living Thing almost lived down to its words in Freetown.

The experienced prosecutor who obtained the Taylor warrant has publicly stated that he had the evidence to indict Gaddafi. His successor, Stephen Rapp, has just left the Taylor trial to take up the post of ambassador for war crimes prosecutions with the Obama administration. If his replacement obtains an arrest warrant from the UN court, Gaddafi would have no immunity if it were executed on him in New York.

There are other ways for US law enforcement to feel the colonel's collar. Britain gave the world the Pinochet precedent, but the US provided the Noriega example – the Panama head of state was arrested, convicted and jailed for exporting cocaine to the US. If Megrahi was guilty of the Lockerbie bombing (and, conspiracy theories aside, the evidence justified the verdict), then Gaddafi must have given the order.

Megrahi was a senior Libyan intelligence official, and there is no way that Gaddafi's intelligence services, run by his brother-in-law, would commit an atrocity of this magnitude without his knowledge and approval. This crime has such close connections to America, given the nationality of the airline and most of the victims, that a New York district attorney would have no difficulty claiming jurisdiction to arrest the man reasonably suspected of being an arch co-conspirator.

Just six months after Lockerbie, the Libyans did it again – to a French airliner over Chad. A French court convicted in absentia Gaddafi's brother-in-law and five Libyan intelligence operatives. Then investigating judges held that there was a strong case for Gaddafi himself to answer: post Pinochet, sovereign immunity could not apply for a crime as serious as blowing up an airliner. But a French appeal court overruled this decision, on the erroneous ground that airline terrorism did not amount to an international crime. The families of Gaddafi's victims appealed to the European court of human rights, so to get himself off the hook his charity paid each family $1m to compromise the case. If the evidence is still available, this case too might proceed in the US.

There are other legal possibilities. Unruly rulers such as Karadzic, Mugabe and Marcos have on visiting America been served with writs and made the subjects of civil actions under the US alien tort claims act. Although those indicted cannot be obliged to wait around for the verdict, proceedings can give victims' relatives some satisfaction through the presentation of evidence about the defendants' complicity in crimes against humanity.

For the present however, Gaddafi struts the world stage, a living embodiment of impunity. He came in from the cold in 2003 for one reason only – to obtain help against Islamic enemies who despise his "green book" and want to destroy his dynasty. Britain has been his leading appeaser: the SAS trains his troops, Scotland Yard helps his police (although not to apprehend the murderer of PC Yvonne Fletcher), and his dissidents here have been arrested and jailed under the UK's anti-terror legislation. Italy and France have welcomed him, and last month the Swiss government issued a grovelling apology for arresting his son, Hannibal, over allegations of beating his servants.

So, over to America. President Obama and Secretary of State Clinton recently criticised Britain for pandering to Gaddafi by encouraging Megrahi's release. This week the US has the opportunity to end Gaddafi's invulnerability which derives not from his strength, but from the weakness of international law and those who have a duty to apply it.

Muammar GaddafiAugusto PinochetSlobodan Milosevic trialUnited NationsAfrican UnionLockerbie plane bombingAbdelbaset al-MegrahiMiddle EastGeoffrey Robertson
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'We should be ashamed that this has happened'

Following the release of terminally-ill Lockerbie bomber Abdelbaset al-Megrahi, the Guardian asks leading thinkers if a convicted mass murderer should ever be shown compassion?

Geoffrey Robertson QC

Member of the United Nations Justice Council, and first president of the UN war crimes court and the author of Crimes Against Humanity: the Struggle for Global Justice

It seems to me an utter perversion of the meaning of compassion, both in law and morality, to suggest that an unrepentant, mass murderer of entirely innocent human beings should not be required to end his life in prison. The Lockerbie bombing was a crime against humanity, part of a series of terrorist acts most likely approved by Gaddafi and cold-bloodedly carried out by officials such as al-Megrahi. The requirements of compassion extend only, in international humanitarian law, to providing medical assistance and pain-killing drugs to treat his cancer and allowing family visits. But his crime against humanity was in law unforgiveable – that is why – such crimes have no time limits on prosecution and no provision for early release. The decision to release him for what any person of any intelligence at all would foresee as a hero's welcome in Libya was lacking in compassion to every victim of terrorism and makes an absurdity of the principle of punishment as a deterrent. MacAskill's arguments are both morally and logically fraudulent. We show mercy towards the merciless by abjuring torture and the death sentence. Crimes against humanity are so heinous that the perpetrator forfeits any claims to favourable treatment beyond that laid down by the Geneva conventions, namely humane treatment in prison overseen by the Red Cross. His release, in order that the criminal state which approved his crime may celebrate it and so justify its criminal actions (which include provision of semtex for many IRA atrocities as well as training terrorists for worldwide barbarities and the assassination of Gaddafi's opponents at home and abroad, and in several cases in England), is a sad day for humanity and for the struggle for global justice. We should be ashamed that this has happened.

Mercy should season justice but only when extended to persons who can rationally be pitied or forgiven. Thus there are overwhelmingly compassionate grounds for refusing to extradite Gary McKinnon, the hacker suffering from Asperger's. There is no kindness to anyone as a consequence of a decision to allow an unrepentant terrorist a triumphant death.

I have read the judgment of the Lockerbie court and the two appeal judgments upholding it and al-Megrahi's guilt seems plain beyond reasonable doubt. And the obvious fact that he was following orders is not an extenuating circumstance under the Nuremberg principles. It was important that the Scottish legal system consider any fresh evidence and arguments that may have exonerated him and its failure to do so (by allowing the withdrawal of his appeal) was unjust and an indictment of Scottish procedural law. Any justice system worthy of the name should have an inherent power to reconsider its positions so as to avoid injustice. However, this failure, deplorable though it is, cannot justify the early release of a man who remains guilty until the conspiracy theory associated with claims of his innocence is proven to the extent that it raises a realistic doubt about the guilty verdict.

Richard Holloway

Currently chair of the Scottish Arts Council, and guest director of the Edinburgh International Book Festival. Former bishop of Edinburgh and primus of the Scottish Episcopal Church

While justice is an enormous and important value in a civilised, humane society, I do not believe that it is an absolute value, that, as it were, negates all others. I believe that in ethical terms mercy is of equal value, and sometimes is of higher importance. Mercy to the dying and to the family of the dying has always been considered important, certainly in the western Christian tradition; you adopt a different posture towards them because they are in extremis. So I personally believe that what the Sottish government has done is a good thing; and a brave thing, especially considering the enormous pressure they were under not to take the decision they did. Given the almost certain unpopularity of the move, and the likelihood that the Scottish Nationalist Party government could even suffer electoral penalties as a result, it shows that they have put principle above their own political safety. I can certainly respect and understand the feelings of the victims' families, but Kenny MacAskill was the only person on the globe that had to make this decision and in his weighing up of the options obviously the easier thing for him to have done would have been to hear the pleas of those who wanted al-Megrahi's punishment to continue up until his death. Faced with a situation like this you can't go both ways. He made the harder decision, and I hope that even those who disagree with it will admire his courage. The whole area of punishment in human life is fraught with difficulty, which is why I've always wanted to listen to something the great poet and philosopher Geothe said: "beware of people in whom the sheer urge to punish is strong". While we do need to punish there is something else in the human heart that should be as strong and that is mercy.

Lisa Appignanesi

President, English PEN

I think it was wise ruling and the Scottish justice minister's statement was a good one and felt very just. The entire nature of justice is about giving over one's personal desires for vengeance to a higher body, which, while considering the crime of the perpetrator, we must somehow move beyond the desire for revenge. It is the most terrible thing in the world to see your children die, and my heart goes out to the parents, nonetheless, as an ethical being, I recognise that it is important to give over justice to the judiciary and not try and take passionate feelings into this terrain. It is a mark of civilisation that we are able to do this. Al-Megrahi has served a sentence, he is dying and it seems right to exercise mercy or, its modern name, compassion, at such a point. American society, from our vantage point, given their use of capital punishment, can seem deeply punitive, and I suspect it is better for all of us if these punitive tendencies are restrained and balanced. I don't know the details of the case, but there was a sense that there were lots of other factors. But in general terms, to err on the side of compassion is the mark of a society that one wants to live in.

AC Grayling

Philosopher

The interests of justice and compassion often clash, though people forget that (in a case like Lockerbie) compassion towards the families and friends of the 270 victims requires that justice be properly done: each individual member of those families and friends has a life sentence that can never be abbreviated. For mass murders, life sentences should mean life, no matter what: provided the conviction is secure. The controversy around al-Megrahi's conviction raises question marks about his guilt, and if it is really true that he has only weeks or a few months to live, with a mother, wife and five children in Libya, our treatment of him (our = our society) should be better than any terrorist's treatment of his victims. But for securely convicted mass murderers, life imprisonment should mean exactly that, for all three purposes of punishment, protection of the public, and (if this ever works, which is questionable) deterrence.

Hisham Matar

Libyan novelist and author of In the Country of Men

I am imagining my father today. For the past 20 years he has been a political prisoner in Libya. The Libyan government continues to deny his existence. This even though Amnesty International has documented the case. In this time he has not been able to see or communicate with anyone outside the prison. Then I think of him hearing how well his oppressors are doing in the world. I think of him listening to the celebrations of the prison guards at the news of al-Megrahi's return. The prisoners might have been given presents to mark the occasion. Then I think of al-Megrahi's children welcoming him home.

Abdelbaset al-MegrahiLockerbie plane bombingRichard HollowayUnited StatesAC GraylingGeoffrey RobertsonLisa Appignanesi
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Geoffrey Robertson: A hereditary head of state and a system based on sexism and religious discrimination have no place in the 21st century

A hereditary head of state and a system based on sexism and religious discrimination have no place in 21st-century Britain

The government's plans to update the monarchy are welcome so far as they go, but they do not go very far. Removing the sex and religious discrimination embedded in the British constitution the 1701 Act of Settlement is long overdue. But the anomaly remains: why should an important public office, that of head of state, be filled, not on merit or by public election, but exclusively by the descendants of a 17th-century German princess?

Under the British constitution, it is the Act of Settlement which determines upon whom the crown shall descend. It reads today as a blood curdling anti-catholic diatribe, providing that any monarch who holds communion with the Church of Rome or marries a papist shall be unthroned immediately. It creates for the UK a white Anglo-German protestant head of state descending from the body of the Princess Sophia of Hanover according to the feudal principle of primogeniture, which requires inheritance down the male line. This is in blatant contravention of the Sex Discrimination Act whilst the requirement that the monarch be an Anglican amounts to discrimination on grounds of religion and is contrary to the Human Rights Act. Why would Charles be unfit to be king if he became a Methodist, or a Hindu or Muslim or Rastarfarian? It is wholly unacceptable to have this primitive bigotry embodied in the rules for choosing a head of state. The laws which define and protect the royal family breach at least four articles of the European convention on human rights. They are obsolete and obnoxious.

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