Published On: Thu, Sep 13th, 2018

Ain’t the ‘rule of law’ a bitch? (i)

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THURSDAY Column with Mohammed Adamu

(08035892325 sms only) | dankande2@gmail.com

I am currently almost half way through my LLM Program in the area of ‘International Law And Diplomacy’. Quite an interesting area of law, you should know. And I love the most the aspect of it called ‘International Humanitarian Law’ -otherwise referred to as the ‘Law of Conflict’. Or the ‘Law of War’. Yes, you heard right; the ‘law of war’! As if war itself is a legal necessity. You wonder why the ‘rule of law’ is so ‘bitchy’ it superintends even over such obnoxious blood-letting and life-wasting phenomenon called war. But soon you’ll see how cowardly even the ‘rule of law’ is, that although it purports to regulate such undesirable phenomenon, yet as soon as hostilities commence, even the ‘rule of law’ spinelessly comes down from its high reverent horse, covers its frightened ears, and with a bent vertebrate run for its dear life. Meaning that it is not us alone, humans, who scream ‘for the life of me!’ when trumpets and the bugles of war are sounded. The almighty law itself takes cover!
Under the subject of ‘International Humanitarian Law’, you get to know the rules governing the declaration and the conduct of war; and the consequences, thereafter, of breaches by state and by individual actors, of the established rules of engagement during the conduct of war. Meaning that violations of the laws of war are not remediable while the war rages on. They are paid for only after the restoration of peace and normalcy. The law, for all its vaunted might, has to wait for the breakers of its rules first, to do their worst and, maybe even to wear their belligerence out, before it acts, first by punishing belligerents who may have declared war without a justifiable casus belli, and those who may have conducted the war outside of the rules of. It is the reason that a principle of international humanitarian law says: ‘the laws are silent amidst the rumbling of arms’ (or ‘silent legis inter arma’). And yes, the ‘rule of law’, for all its vaunted charge is muted, shushed and has to take the back seat whenever guns and cannons emit their wrath. And if, like the ‘Punic wars’, a war chooses to drag forever, the ‘rule of law’ has no option but to tarry as long, in hibernation; until reprieve comes its way and belligerents either sheath their swords or are vanquished.
And so like Shakespeare’s dig at ‘the old father antiquing the law’, it is in ‘peace time’ that, that once shriveled, terror-stricken persona of the ‘rule of law’ remounts its throne on the high horse, and like the proverbial ‘Jove’, the Roman god Jupiter, it may now resume its pelting petty right to roar and to thunder! This has been the nature of this bitchy, cowardly concept called ‘rule of law’; so much that at the Nuremberg trial (one of the earliest international ad hoc tribunals set up to punish state and non state actors of the Second World war), there were in fact no precedents in law to deal with the alleged offenders. Those who were brought before the tribunal were virtually prosecuted retro-actively for breaches of laws that did not, ab initio, exist. This was a violation itself, of one of the most fundamental principles of the ‘rule of law’ namely that no one must be punished for a conduct at the time of the commission or omission of which there was no law written prohibiting such. The ‘rule of law’ has not always ruled the human space absolutely. Nor has it always dealt with the human kind with substantial justice. When the laws are silent amidst the rumblings of arms, everything is fair game: rights, duties, freedom, liberty, and all. In fact even tenement rates due to property owners are suspended sine die
Studying ‘International Law and Diplomacy’ you also get to know –under Consular and Diplomatic Law- another bitchy side to the concept of ‘rule of law’ –in this case, the aspect dealing with the rules of international law governing the conferment and the waiver of diplomatic immunities and privileges -especially to two categories of people, namely ‘diplomatic agents’ (of a Diplomatic Mission) and consular officers (of a Consulate). Here, the rule of international law is that for all intent and purposes and in virtually all circumstances, diplomatic agents are immune to the national (i.e. local or domestic) laws of the state they have been accredited to operate from. But the immunities and privileges of consular officers are enjoyed only to a limited degree. These rights are grounded in the provisions of two international conventions, namely the ‘Vienna Convention on Diplomatic Relations and the ‘Vienna Convention on Consular Relations’.
Diplomatic agents enjoy immunity from criminal responsibility even when they kill recklessly or even premeditatedly. Diplomatic agents are also immune from civil suits except in quite few circumstances where the level of their personal involvement in private business outside of their strict diplomatic brief, is deemed sufficient to vitiate their immunities and privileges. Many local property owners have been victims of diplomatic agents accumulating huge rent dues over their private residences or even whole diplomatic missions blatantly refusing to pay their annual rent dues for the diplomatic premises that they occupy -so much that in exploring ways to strike a balance between maintaining broad immunity and providing victims with means of redress, some states now consider the possibility of establishing a claims fund to compensate such victims.
It is not that diplomats are exempted from observing the local laws of their serving states; the problem is that they are immune from the jurisdiction of the domestic courts of those states. And so here too it can be said –as in the ‘rules of war’- that ‘the laws are silent amidst the rumblings of diplomacy’. Or ‘silent legis inter diplomatique’ (my creation). Unless a ‘sending state’ (i.e. a diplomat’s home country) voluntarily waives the immunity of her criminally-offending agent, so that the ‘receiving state’ (or the state in which he operates) can now proceed to prosecute him, the only remedy available to that ‘receiving state’ is a resort to the use of another weapon of diplomacy, namely declaring such erring diplomat ‘persona non grata’. It is a euphemism for expulsion, and which may lead to physical deportation where expelled diplomats fail to leave within reasonable time.
To round up my course work, I have just done my last but one joint class presentation with Abubakar Kanti on the subject of ‘Re-thinking and Reviewing Remedial Approaches to Addressing the abuses of Diplomatic Immunities and Privileges’. This paper in a nut shell is asking to know: ‘in spite of the seemingly un-navigable hyacinth of rules in this delicate area of international law, how can the diplomatic agent be made criminally responsible especially for his deliberate criminal actions?’ And herein lies the significance too, of a review of the concepts of ‘public interest’ and or ‘national security’; so that even more definite questions can be asked, like: ‘should the ‘rules of international law’ operate above all other considerations including those germane to ‘public interest’ and ‘national security’ or should they operate in deference to them -so that in all circumstances no one, whether diplomat or plebian, is allowed to get away with crime?’ Or ‘is it in the interest of the public, or of national security that a nationale of a foreign country should, under the cover of immunity and privilege, brazenly kill a citizen of the host nation and get away with it?’
The answers to some of these questions provided by Lord Denning in a third of his famed trilogy ‘Landmarks In The Law’, are of interest to this article because they prove not only that the ‘rule of law’ often constitutes itself into a bitch, but that man also has no inhibition, whenever necessary, to treat the ‘rule of law’ as such –if that is all that it takes to overcome its bitchy side.

To be concluded

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