The First War Crimes Trial of a Head of State





Mr. Robertson QC is an appeal judge for the UN’s war crimes court in Sierra Leone.  He has just published The Tyrannicide Brief (Pantheon), the first biography of John Cooke, the barrister who prosecuted Charles I.

The trial of Charles I in 1649 secured the historic gains of the English civil war – the supremacy of parliament, the independence of judges, individual freedom guaranteed by Magna Carta and the common law. From a modern perspective, it was the first war crimes trial of a head of state. The arguments in Westminster Hall resonate today in the courtrooms at the Hague and even in the Iraqi Special Tribunal – Saddam Hussein’s opening words to his judge were, in translation, a paraphrase of those of Charles I: “By what power am I called hither… I would know by what authority, lawful I mean….”

Three centuries before the rulings against Pinochet and Milosevic, this was a compelling argument. Charles had the purest form of sovereign immunity: he was a sovereign, both by hereditary and (as many believed) by divine right. Judges had always said that the King, as the source of the law, could do no wrong (rex is lex is how they had put it, when deciding that Charles could impose a tax without Parliament’s approval).

As for international law, the ink was hardly dry on its modern foundation, the Treaty of Westphalia (October 1648), which guaranteed immunity to every prince, however Machiavellian. The best thing about the Treaty of Westphalia, however, was that England was not a party to it. On January 6th, 1649, the purged House of Commons passed an “Act” to establish a High Court of Justice, “to the end that no chief officer or magistrate may hereafter presume traitorously or maliciously to imagine or continue the enslaving or destroying of the English nation, and expect impunity for so doing…”

This was the origin of “impunity” in the sense that Kofi Annan and Amnesty International now use the word, to refer to the freedom that tyrants should never have to live happily ever after their tyranny. Parliament’s brief to end impunity was sent to a puritan barrister at Gray’s Inn, John Cooke, one of the very few counsel prepared to risk his life by accepting it. He devised a new offence – the crime of tyranny - for which not even a monarch could claim immunity. “Tyranny” was an apt description of what today would include crimes against humanity and war crimes: Cooke used it to describe the conduct of leaders who destroy law and liberty or who bear command responsibility for the killing of their own people or the plunder of innocent civilians or the torture of prisoners of war.

By opting for a public trial, Oliver Cromwell and the parliamentarians were taking an enormous risk – they were providing the King with a political platform as well as an opportunity to contest his guilt (for this very reason, Churchill strenuously opposed the trial of Nazi leaders at Nuremberg). But these puritan lawyers and MPs were determined that the King should have justice – whether he wanted it or not. More justice, indeed, than given to ordinary prisoners, who were automatically deemed guilty if, like Charles, they refused to plead. Before the King was convicted, however, the court required the prosecutor to prove his guilt. Eye-witnesses testified that he had directed the plunder of towns, supervised the torture of prisoners and was planning to make war again.

The execution of Charles I was not preordained. Most of those later dubbed “regicides” did not at first want to kill the King. John Cooke certainly believed at the outset that the proceedings would end with some form of reconciliation - a limited constitutional monarchy or abdication in favor of the King’s youngest son. But justice has its own momentum: on the opening day (January 20th, 1649) the seventy judges (who sat, in effect, as a jury) were shocked by the defendant’s arrogance and his insouciant demeanour. He laughed loudly while the court clerk read Cooke’s charge which detailed the carnage of the civil war. Then he sealed his fate by telling his guards that he cared nothing for casualties on either side.

This confession was reported to the prosecutor and to the judges and it influenced their minds: it helped to convince Cooke, for instance, that “the King must die and monarchy with him.” Charles Stuart had no remorse, so he deserved to die. This was Cromwell’s fatal mistake: the King’s execution made him a martyr, and paved the way in public sentiment for the restoration of the monarchy eleven years later. (It is a mistake about to be repeated: the execution of Saddam Hussein will most likely tip Iraq into full-blooded civil war.)

The consequence of the King’s trial was a republic – the Commonwealth of England, declared on 17th March 1649. The House of Commons was henceforth “the supreme authority of this nation, the representatives of the people in parliament.” It was to be the only authority – the House of Lords was abolished as a “useless and dangerous body.” With abolition of the Star Chamber, the King’s own “kangaroo court,” came the end of torture: it was never again inflicted.

The republic of England, argued into existence in 1649 by the sermons of Hugh Peters (Cromwell’s chaplain), the final speech of John Cooke (never delivered but widely published) and the elegant sarcasm of John Milton (The Tenure of Kings and Magistrates) was a construct of justice and right reason (nobody should be above the law) supported by the Puritans’ biblical interpretation that kings were graven images – rivals to, rather than anointed by, God. The regicides did not hark back to Rome or model their republic on the existing city-states of Geneva and Venice. The road to their new Jerusalem was paved by the demand for justice on the man they held responsible for the death of one in ten Englishmen in the civil wars.

The influence of the American colonists on the English republican movement is often overlooked. Hugh Peters, the first minister at Salem, and a leading founder of Harvard College, was a key influence on Cooke and Cromwell, as was Sir Harry Vane, an early governor of Massachusetts. Harvard graduates became influential advisors to Cromwell – the first, George Downing (who gave his name to Downing Street) ran the republic’s foreign policy.

Come the Restoration, it was the regicides who were offered up as human sacrifices: 49 were brought to the Old Bailey, where vetted juries were directed to convict. John Cooke and Hugh Peters were dragged from Newgate Prison to Charing Cross, to be disembowelled in the presence of Charles II. Their courage so astounded London that the onlookers began to turn sympathetic and the government dared not bring the other republicans up for sentence. So the King’s lawyers hit on the idea of having them detained indefinitely on off-shore islands to which the writ of habeas corpus would not run – a device that the Bush administration later borrowed for Guantanamo Bay.

The leading republicans were men of principle. John Cooke, for example, devoted much of his life to making poverty history. At the end of the civil wars he had published “The Poor Man’s Case” – a passionate and prescient plea for social justice and redistribution of wealth which envisaged a national health service, identified poverty as a cause of crime and argued for limits to the death sentence and abolition of imprisonment for debt. Later, as a judge in Ireland, he shocked the great landlords by his rulings in favour of their tenants. He even urged fellow barristers to devote 10% of their practice to pro bono work, a plea that still falls on deaf ears.

In a letter written from the Tower of London, shortly before his execution, John Cooke explained “the good old cause”: “We are not traitors or murderers or fanatics, but true Christians and good commonwealthsmen, fixed and constant in that noble principle of preferring the universality before particularity. We fought for the public good and would have enfranchised the people and secured the welfare of the whole groaning creation, if the nation had not more delighted in servitude than in freedom.”

John Cooke and the King’s judges were tyrannicides, who pushed England to where logic (“right reason”) led, where law (Magna Carta) pointed and where God (the first book of Samuel) approved. It was a point that no other nation at the time or for another century would reach: a proto-democratic republic with constitutional safeguards for civil liberties.


comments powered by Disqus

More Comments:


omar ibrahim baker - 10/19/2007

The rule of Saddam Hussein and the Baath Party (1968-2003)over Iraq witnessed many momentous events: wars, civil and armed insurectios and ceaseless atempts at coup d'etats and assassination.
It also witnessed some very serious cases of infringements of civil and political rights of the Iraqi people.
These infringements should have been the subject of a thorough, objective and apolitical investigation and trials by a truly free, Iraqi and apolitical court(s) of law.
The court that tried Saddam had none of these essential qualifications .
It was a politically servile court to a regime that is 100% held to the sworn enemy of Iraq and the Arab nation; the US occupation force dispatched by the Bush /Wolfowitz to destroy Iraq.
As such its expected verdict has every thing to do with US occupation,the imperialisr/Zionist alliance, the resistance to US occupation and nothing to do with the rule of law or the service of justice.
It was the typical kangaroo court and its verdict, if any thing, will confirm Saddam's reputation, in Arab public opinion and esteem, as the arch enemy of the USA and Israel.
Being tried by an occupation appointed court will exonorate Saddam and his colleagues from whatever infringments of the rights of the Iraqi people they may have committed!


omar ibrahim baker - 10/19/2007

The rule of Saddam Hussein and the Baath Party (1968-2003)over Iraq witnessed many momentous events: wars, civil and armed insurectios and ceaseless atempts at coup d'etats and assassination.
It also witnessed some very serious cases of infringements of civil and political rights of the Iraqi people.
These infringements should have been the subject of a thorough, objective and apolitical investigation and trials by a truly free, Iraqi and apolitical court(s) of law.
The court that tried Saddam had none of these essential qualifications .
It was a politically servile court to a regime that is 100% held to the sworn enemy of Iraq and the Arab nation; the US occupation force dispatched by the Bush /Wolfowitz to destroy Iraq.
As such its expected verdict has every thing to do with US occupation,the imperialisr/Zionist alliance, the resistance to US occupation and nothing to do with the rule of law or the service of justice.
It was the typical kangaroo court and its verdict, if any thing, will confirm Saddam's reputation, in Arab public opinion and esteem, as the arch enemy of the USA and Israel.
Being tried by an occupation appointed court will exonorate Saddam and his colleagues from whatever infringments of the rights of the Iraqi people they may have committed!


omar ibrahim baker - 10/19/2007

Mr Simon
If I were to worry because of you and the likes of you I would be in a real impasse!
The poetry is silly and the implicit comment is sillier...however if that makes you less comlex ridden then you can go on, blow off to your heart's content; I do not mind and do not care about what you have to say; knowing you well by now!
By now I, also, can foretell your innane comments!
For a Zionist, ie per force a racist, to speak, at all, about law is a traversty.


E. Simon - 11/10/2006

What's even more amusing is trying to surmise what rules of evidence Mr. Pettit goes on to make his assertions regarding my apparent legal professionalism and ideologies. One could ask what kind of "debate" he hoped for with someone whom he regards as loony as he admittedly does Baker, but I suppose that would require actually taking issue with the only statement I bothered to in the first place, namely that any particular, alleged jurisdictional problems in a trial can in any way "exonerate" a defendent generally and in the abstract, let alone completely. I'm not surprised that he didn't bother to do that, though, as he also never does explain he how means that "ideology" is in itself an outright evil, as if being pro-human rights - to take just one example - were somehow just a neutral stance.

And of course, Baker's substantive objection; i.e. that not embracing the rabid Arab supremacy nationalism he does, disqualifies one from his consideration or from offering legal opinion, is about what anyone here would expect. But his demonstrated lack of familiarity with Lennon/McCartney lyrics says a little more this time. Good thing I didn't parody him with "Why Don't We Do It in the Road," (also from the White Album).

Incidentally, the article itself was very impressive. If anyone would care to comment on that then I'm sure the discussion could reach levels of intellectual sophistication and relevance unachievable by either Messrs. Pettit or Baker. Just hope someone's up to the job. One can hope, one can pray.


chris l pettit - 11/9/2006

for as little as a positivist such as Mr. Simon knows about the nature and theories of law...particularly international law...this conversation looks like the pot calling the kettle black. Granted, Mr. Baker is as loony as they come from a rather ideologically skewed perspective...but a hypocritical and ideological legal professional such as Mr. Simon criticizing him does nothing to truly further the conversation...although this is what gets by as "debate" on this site...

CP


E. Simon - 11/9/2006

"Being tried by an occupation appointed court will exonorate Saddam and his colleagues from whatever infringments of the rights of the Iraqi people they may have committed!"

Shows how much of what you don't know about law.



"Now somewhere in the Black Mountain hills of Judea there lived a young guy named Omar Ibrahim Baker... one day his government ran off with another guy, hit young Omar in the eye, Omar didn't like that, said I'm a gonna git that boy. So one day he walked into town booked himself a room in the local saloon..."

"Omar the loon, checked into his room, only to find Ali's bible,"

"Omar had come, equipped with nitroglycerin, to blow off the legs of his rival,"

"His rival, it seems, had broken his dreams, by stealing the girl of his fancy,"

"Her name was MaGill, and she called herself 'Lil, but everyone knew her as Nancy,"

"Now she and her man, who called himself Ariel Dan, were in the next room at the hoe-down,"

"Omar burst in, and grinning a grin, he said, 'Danny, boy, this is a showdown,'"

"But Daniel was hot, and he drew first and shot, and Omar collapsed in the corner..."

Don't worry, Omar. You get revived in the end.


Alexandra Pierce - 11/7/2006

I really loved the book - I read it just after Hussein's trial started, and so it was even more immensely relevant than it might otherwise have been. And it was so readable! - as someone who knew virtually nothing about the English Civil War, the ins and outs were rendered intelligible, and the players absolutely came alive. The thing that amazed me the most, I think, was that aspects we just take for granted in the legal system - such as heads of state being able to be prosecuted (I'm a 70s child, so this does seem obvious to me), as well lawyers not making laws! - were, to such a great extent, the innovations of one, later maligned, man. An excellent book!