When Mr. Bumble was told, in Dickens' Oliver Twist, that "the law supposes that your wife acts under your direction", the good man replied, "if the law supposes that [...] the law is an ass - an idiot. If that's the eye of the law, the law is a bachelor."
There are various ways in which modern law is not married to good sense. For example, one opinion of the United States Supreme Court tells us that your innocence is not constitutionally relevant to whether you should be executed. But recently, British courts have rivalled their counterparts across the pond in competing for the most senseless judgment. The latest example came just yesterday, when three British judges said they could not rule on whether British officials were complicit in murdering Pakistani civilians in US drone strikes because that might embarrass our friends in America.
The case involves a Pakistani called Noor Khan. I have met him. A habitually calm young man, he was understandably incensed when his father was killed - in one of the catastrophes of the US drone age - in the region of Pakistan that borders on Afghanistan. The drone strike was patently illegal; there is no war with Pakistan, and the Predator drone fired hellfire missiles that killed some fifty innocent elders who were holding a jirga or local council meeting, peacefully trying to resolve a local dispute over a chromite mine.
It was the equivalent of bombing the High Court in London. It was both the domestic crime of murder, and the international war crime of targeting civilians.
Sad to say, there is evidence that the British security services have been supplying the US with intelligence that has led to a number of these strikes. The simple claim that Khan was making, too late to save his father, was that GCHQ should not be allowed to do this if their own actions violate British and international law.
British domestic law criminalises the "intentional encouraging or assisting" of the crime of murder. The International Criminal Court Act of 2001 defines one crime against humanity as a mass killing of members of a civilian population. Another is an intentional attack against a person not taking a direct part in hostilities.
Those whose actions are being questioned are not soldiers risking their lives fighting a legal war (who are therefore covered by combatant immunity); they are intelligence officers who, sitting comfortably in Cheltenham over a cup of coffee, are instrumental in one of the most serious criminal acts.
The government's lawyers told the court that to "permit the validity of the acts of one sovereign state to be re-examined and perhaps condemned by the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations.'" The principle protects America from British criticism, and derives from an American case in 1897 dealing with the Venezuelan revolution. But more recently, another American court has described that precedent as an "airy castle", an insubstantial notion that has no clear link to the real world.
It is time for our courts to reconsider what we grandly term the "act of state doctrine." If a foreign government commits a crime, why should we not say so - indeed, why not shout it from the hilltops? The Americans certainly do, so long as it is a foreign country they don't really like.
Likewise, we know that Americans have tortured the last British resident in Guantánamo Bay, Shaker Aamer, into making false statements that might be used against him on his return to London. Surely a British court is not merely allowed to air all of this, but rather obliged to? And if the British are colluding with their American counterparts in committing war crimes around the world, surely it is time to just say no?
Why should national governments have the right to commit acts that would rightly send one of us to prison for many years?
It is a dangerous falsehood to claim - as some do - that we have too much law, when clearly, those who are being tortured or killed in our name have had not nearly enough. Here we have a court refusing to condemn murder and war crimes, because it might "embarrass" the Americans. It most certainly should.Suggest a correction