The Barrister and the Bomb

Geoffrey Robertson's latest target is nuclear Iran. But his new book looks through the prism of "legal architectures" and so cannot offer real suggestions as to how to stop the Iranians get the bomb

Peter Smith

Geoffrey Robertson: No real suggestions about stopping Iran

Counsel for the prosecution adjusts his horsehair wig, smoothes his silk gown, coughs, and turns to face the jury. “There is no graver threat to international peace and security than the prospect of Iran acquiring nuclear weapons”, he intones. “Once it has the capacity to make ‘the bomb’—and it had come quite close by the autumn of 2012—then the centre cannot hold.”

Thus begins Mullahs without Mercy, Geoffrey Robertson QC’s most recent contribution to his specialist subject: regimes which permit or carry out systematic and egregious acts of violence against groups within their jurisdiction through torture, rape and executions, criminal acts which constitute widespread breaches of fundamental human rights. However, unlike the Balkans or Sierra Leone (where Robertson has sat as an appellate judge in the Special Court), the defendant in Robertson’s sights is on the cusp of developing nuclear weapons.

Rather than airstrikes, Robertson hopes “lawfare” will stop Iran reaching the point of no return. His starting point is that the very production and possession of the bomb should itself be a crime against humanity. Nukes, he says, breach “the most fundamental of human rights, the entitlement of every individual not to be deprived arbitrarily of his or her life and not to be subject to the inhumane treatment and torture caused to survivors by ionising radiation.” Moreover, unlike less prestigious but no less lethal biological and chemical weaponry, possession of nukes (whose lethality is “uncontainable in space or time”) by one state provides “a constant stimulus” for a destablising arms race that sucks in lives and money. 

This axiomatic ban has two effects. Criminalisation of possession would propel the members of the “nuclear club” (of which Britain is a member) down the path to complete nuclear disarmament envisaged in the Non-Proliferation Treaty, adding crucial weight to the NPT’s current obligation to use “good faith” in negotiating to achieve that end.

For states like Iran, whose dreams of nuclear capacity would augment their capacity to carry out crimes against humanity, criminalisation would provide the international community with the capacity to act even when the given mechanisms governing the use of force are stuck. 

At this point Robertson’s arguments become quite technical and legal (Mullahs has the feel of a written submission to a court, with frequent cross-reference to witness statements and other evidence, and a tidy chronology at the end). 

Violence is outlawed in international law, and to use military force without one of three recognised justifications is to commit the crime of aggression. Robertson assumes that deadlock at the UN will prohibit a Security Council resolution authorising force, and that going nuclear will not cause a humanitarian catastrophe of such magnitude that the international community must act. 

This leaves the third justification: the Caroline criteria governing a state’s right to pre-emptive self-defence, where the necessity for force must be instant, overwhelming and leaving no choice of means and no moment of deliberation. Israel, he concludes, has no right to attack Iran today. Airstrikes are impractical, would only set back Iran’s programme, and cause the emission of highly toxic radiological material. Israel would be acting in anticipation of a threat, before it crystallises. In any event, Iran does not pose a genuine threat. Despite President Ahmadinejad’s anti-Semitic and belligerent rhetoric, Robertson concludes: “The leaders of Iran are about as rational as serial killers, and it is their criminality, rather than their rationality, that matters.” 

Here he is on dubious ground. Robertson has no real suggestion on how to stop Iran. He alludes to a US-led coalition of the willing which could act, presumably with force, but immediately warns any such attack attracts a reciprocal duty on the US and its allies to treat their own nuclear weapons as unlawful and proceed to multilateral disarmament. The mullahs are not quaking at the alternative: the remote possibility of following Charles Taylor to trial at The Hague and life in a British prison (Robertson would oppose them following Saddam to the noose) once the bomb has been built.

Robertson partly built his reputation at the Bar by voraciously chasing heinous abusers of human rights. He documented this sterling work in Crimes against Humanity (1999) before lamentably chucking Benedict XVI into the same basket as Pinochet and Milosevic in The Case of the Pope (2010). Therein lies his problem. A lawyer sees proliferation through “legal architectures”, NGOs and human rights. But without a consistent and reliable global enforcement authority that does not doubt the rectitude of its actions, the bomb will remain an untameable creature of the wild lands of international realpolitik. 

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