Full Shirley Smith Lecture, by Sir Kenneth Keith
My title states a conflict between human rights on the one side and national security on the other. Over the last decade, since the evil and shocking events of 11 September 2001, that apparent conflict, that contest has often been taken for granted with the assumption that one or the other will yield. To think of Shirley’s early scholarly interest in the classics, in Latin at Oxford, Auckland and Victoria, and also of her teaching of Roman Law at Victoria, Marcus Tullius Cicero twice gave the answer favouring national security:
Salus populi est suprema lex.
The safety of the people is the supreme law.
He said in De Legibus, of Law, written between 52 and 43 BC,
Silent enim leges inter arma
The law is silent among the clash of arms.
Those final words appear in the written up version of the speech, in defence of Titus Annius Milo who was charged in 51 BC with murder and was tried in the Forum. When Cicero emerged there from the litter which Milo had provided with the purpose of protecting him from the crowd and especially from the large number of soldiers, he saw Pompey standing on high ground and weapons flashing in the bright sun from all sides. His body shook, his voice faltered, he could hardly start his speech. He spoke briefly and soon withdrew. It was – I have been quoting his recent excellent biographer, Anthony Everitt – the most embarrassing moment in his professional life. Milo was convicted and exiled and, reading the worked up version of the speech, responded to Cicero that it was lucky for him that that was not said in Court for he would not now be eating such wonderful mullets in Massilia!
That incident raises issues about professional responsibility, the integrity of the judicial process and the value of grand pronouncements of principle – issues which will arise from time to time in this address.
From the next century history also records the actions of the Jewish zealots in 75 AD and the siege of Masada, and later, but still within Roman times, Justinian II’s reign of terror in Constantinople. One chronicler of the sacking by the Crusaders of Jerusalem in 1099 records, with evident enthusiasm, that in the Temple of Solomon men rode in blood up to their bridle reins; it was, he declared, a just and splendid judgment of God that this place should be filled with the blood of the unbelievers since it had suffered so long from their blasphemy.
Soon afterwards came the assassins, an adaptation of the word ‘hashish’ and then at the end of the eighteenth century the word ‘ terrorism’ came into standard English usage after the Terror of Robespierre. A century after that and only a century ago there came, with increasing globalization which plainly can be malign as well as benign, a string of assassinations on both sides of the Atlantic – two American Presidents and the Presidents of Mexico and Haiti, the Kings of Italy, Serbia, Spain, Portugal and Greece and the Prime Ministers of Greece, Persia, Japan, Egypt, Russia and Austria-Hungary, as well as the Archduke of Austria in August 1914 in Sarajevo. (A column last week in the Financial Times warned leaders to beware the Guns of August and not to go on holiday – a warning that was not taken.)
Some of those assassinations led a group of European Heads of State in St Petersburg in 1904 to negotiate a Protocol against the Anarchists. The assassination of King Alexander of Yugoslavia in Marseilles in 1936 led to the conclusion, in the following year, of a Convention for the Prevention and Punishment of the Crime of Terrorism and a Convention for an International Criminal Court to deal with terrorist crimes. Neither treaty came into force and negotiations continue to this day to prepare a comprehensive antiterrorism convention. In the meantime several conventions relating to particular types of terrorist acts have come into force, and since 1949 the Geneva Conventions and their protocols, applicable in times of war, have prohibited acts or threats of violence the primary purpose of which is to spread terror among the civilian population. For some years now the Security Council has in effect enacted a series of laws for the world to counter terrorism by imposing restrictions on foreign trade, on the movement of individuals and by the freezing of assets.
National legislation implementing the international requirements and in many cases going far beyond them now is vast, as is the accompanying case law and commentary. One collection of documents in the VUW library now exceeds 80 large volumes and another series has a further 20. They relate to many parts of international and national law – including the right to use armed force, the limits on the methods and means of warfare, the status of those captured, their rights when detained, their rights to a fair trial, controls over trade, movement and assets, limits on freedom of speech, association and assembly.
This law has mushroomed to such an extent that, to take just the example of Australia, Parliament there has established an independent office – the appointee is a senior barrister – to review the great number of laws, many, it is said, passed in haste and in breach of principle (or in accordance with it, if you take Cicero’s principle) over the last decade.
Before I take and consider one slice of that law, I recall a few facts. The facts after all in many cases will, or certainly should, be decisive or at least given great weight. I take some facts from the 1990s through to about 2005 when much of their legislative activity I have mentioned was at its peak. Facts and figures, I must stress, are not all. There must also be qualitative judgment.
The attacks of September and December 2001, October 2002, July 2005 and many others including, just a few days ago, this one in Norway, were evil and criminal. Such attacks may challenge the very essence of democratic societies. But quantitative measures are relevant and significant. International Red Cross figures show that in the decade from the end of the Cold War on average, over 4,000 people were killed in armed conflict week by deadly week, three quarters of them in Africa. State Department figures show that through the same period – that is, the 1990s – the average number of deaths from international terrorism was under ten a week. Deaths from malaria averaged about 20,000 a week – almost all in sub-Saharan Africa – and that is still the case. I should update the figures which I have just given.
One careful scholar of terrorism, Paul Wilkinson, Professor Emeritus of International Relations at St Andrew’s, has recorded that, over the four years from January 2006 to the end of 2009, 11 countries suffered over 1000 terrorists attacks with Iraq with 18,000, Afghanistan with 5,400 and Pakistan with 5,000, being the top three, and of course there had been the major attacks I mentioned a moment ago earlier in that decade. (Terrorism v Democracy – the Liberal State Response (3d ed 2011). He also provides the important warning that fundamental mistakes in responding to terrorism can end up strengthening terrorism and creating further threats to international peace and security and human rights.
My one slice of the law relates to information, in particular the powers of the State to obtain it and the use to be made of the information, in each case in the context of national security and terrorism. What powers does the State have to obtain information? What powers should it have? What limits should there be on those powers to protect individual liberty, reputation, privacy and other interests?
What obligations should the State have to disclose information to the world community, to the public at large, to the individuals particularly affected and for a range of different purposes?
Although I am considering these questions in the context of claims of national security, particularly to counter acts of terrorism, they are to be seen in their wider contexts. We should not assume that such apparently specific claims make that wider experience, principle and process, irrelevant.
I consider two aspects of State power to obtain information – powers of search and other means of surveillance and powers of questioning. The State in principle is free to gather information, as we all can, so long as it and we do not breach the law, for instance by trespassing. It may exercise the freedom we all have to observe, to listen, to learn.
The State of course has many more eyes and ears, now greatly enhanced, as the Law Commission emphasized last week, by amazing new technology and there is good reason that major controls be placed on the deployment of such means and on the use of the information obtained. But if limits are not placed by law, by legislation, the powers may, in fact, be very intrusive.
An English Court, for instance, held not long ago that there was nothing in the law to stop the Metropolitan Police, with the help of the Post Office, from tapping the telephone wires of James Malone, an antique dealer, charged with theft. Successful proceedings by Mr Malone in the European Court of Human Rights led to legislation regulating that activity, legislation which influenced amendments made in 1977 to the statute regulating the New Zealand Security Intelligence Service, following the Report by Sir Guy Powles as Chief Ombudsman on the Service. The preparation of such legislation involves important issues about the extent of that power, the purposes for which it may be exercised, and the issuer – a Minister or a Judge?
The proposition that the freedom to gather information must be exercised within the law may be illustrated by two cases greatly divided by time and place but not by subject matter, principle or result.
In 1765, John Entick, a clerk, obtained a judgment for 300 pounds (over 400,000 pounds today in average earnings) from a jury in Westminster Hall for trespass by Nathan Carrington and three other messengers in ordinary to the King. They had entered the plaintiff’s house under a warrant to search and seize the papers of John Entick, who was charged with seditious libel, and seized many papers. The warrant was issued by the Earl of Halifax, a principal secretary of state and privy counselor, in the King’s name.
I refer to only one part, the final part, of the judgment of Lord Camden, the Chief Justice, who upheld the verdict of the jury. In that part the Chief Justice addresses an argument based on practice and necessity. The power so claimed, he said, is not supported by one single citation from any law book extant. It is claimed by no other magistrate in the kingdom but himself: the great Executive, of criminal justice, the Lord Chief Justice of the Court of King’s Bench, Chief Justice Scroggs excepted,had never assumed this authority.
The Chief Justice was not impressed by the argument that the power was essential to government and the only means of quieting clamours and sedition. He starkly described the claimed power in its full extent. The law to warrant such a power, one would expect, would be as clear in proportion as the power is exorbitant. “If it is law”, he declared, “it will be found in our books, if it not to be found there, it is not law.” The Chief Justice stressed the essential character of the securing of property. Every invasion of private property, be it ever so minute, is a trespass and a trespasser to be excused must point to a positive law. The silence of the books is an authority against the defendants. Were the judges to move in the direction proposed by the defendants that would, he declared, be not judgment but legislation.
In the other case, decided in 1998, the New Zealand Court of Appeal held that two officers of the SIS had unlawfully trespassed on premises in Christchurch of which the plaintiff, Mr Aziz Choudry, was tenant and occupier. The SIS officers claimed the power to enter the premises by acting under a warrant issued by the Prime Minister as Minister in charge of the Service. In this case the State was able to base its argument on legislation – the 1977 amendments. But the Court was unable to find anything in the carefully focused statutory law and scheme to justify going behind that narrow grant of invasive powers. The Court referred to the recognition in legislation of the important constitutional consideration that at common law every invasion of private property is a trespass and any intended erosion of that protection should be spelt out in the plainest terms. Those values and concerns were also reflected in the Bill of Rights.
To turn to the second aspect of the obtaining of information, the State, in principle, once again has the same power that we all do to ask questions. The law has long placed limits on the use that the requester may make of the answers and placed limits on the power to make requests. Many State powers to ask have associated with them obligations to reply, powers with which we are familiar in many parts of our day to day life. Consider tax returns, applications for many types of licences and benefits, and entry and departure forms when we cross borders.
I limit myself to two situations which are often seen, at least these days, as involving matters of national security and action against terrorism. Two things are clear as a matter of international law even if sadly the facts too often demonstrate major breaches.
First, prisoners of war under the Hague Rules of 1899 and 1907, confirmed by the Geneva Conventions of 1929 and 1949, are required on capture to provide only their name, rank, date of birth and serial number. That information is necessary if the detaining power is to meet its obligations to record that information and to transmit it through the information bureaux to the other party to the conflict.
That limited obligation of prisoners of war is supported by a prohibition placed on the detaining power. It is not to engage in physical or mental torture or other forms of coercion against them to obtain information of any kind whatever. The clarity of those protections and obligations make all the more critical the according to those captured, following due process, of POW status when that is required, as is almost always the case for those captured on the battlefield in international armed conflicts.
The second obligation of States, again declared with clarity, is that they must not engage in torture or cruel or inhuman treatment, an obligation which exists in both peace and war, whether national or international, and which is not subject to derogation on any account. That obligation is now understood to include the obligation of the State not to deport a non-citizen if substantial grounds have been shown for believing that that person faces a real risk of torture. A similar obligation exists in respect of the risk of arbitrary killing.
But what of the ‘ticking bomb’ scenario, of real threats to the survival of the State? What of Cicero’s propositions? Do not the apparent demands of reality overwhelm the rhetoric of the treaty texts? No doubt in some cases that is sadly so. But not always.
In a judgment ruling that a military commander had distributed gas masks unequally during the 1991 Gulf War when Iraq fired missiles at Israel, the Chief Justice of Israel, Arahon Barak, said:
‘ even when the cannons speak, the military commander must uphold the law. The power of society to stand up against its enemies is based on the recognition that it is fighting for values that deserve protection. The rule of law is one of these values.’
And in 1999 his Court agreed on a ruling that certain methods used by the Israeli General Security Service to interrogate suspected terrorists were unlawful.
Near the end of the judgment Arahon Barak spoke of the harsh reality of the security position in which Israel found itself. The Court, he said, was aware that its decision declaring the methods of interrogation unlawful does not ease dealing with the reality:
“This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security.
At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. . . . Our apprehension is that this decision will hamper the ability to properly deal with terrorists and terrorism, disturbs us. We are, however, judges. Our brethren require us to act according to the law. This is equally the standard that we set for ourselves. When we sit to judge, we are being judged. Therefore, we must act according to our purest conscience when we decide the law.”
Increasingly, if only to a limited extent, as these and other cases show, these matters of individual liberty and national security are the subject of independent processes of inquiry, prosecution and other forms of litigation.
One link to litigation concerns the admissibility in court proceedings of any evidence that may be obtained by such unlawful means. The Torture Convention does indeed declare inadmissible as evidence any statement obtained by torture, except against the alleged torturer. That prohibition is rare. It may be unique. The process of determining admissibility in the context of illegal action by State authorities more often involves the weighing of competing considerations rather than the application of absolutes. Such weighing is familiar in national legal systems – and increasingly in international ones, to come to the last part of this paper.
What is the law to do if a party to litigation wishes to have evidence admitted so that the facts underlying claims presented can be fully elaborated and tested but matters of national security are said to stand in the way of its disclosure – or its full disclosure?
The answers to that question have changed greatly over recent decades, nationally and internationally. Variations on the question also increasingly arise outside the litigation context – consider obligations on States to make information available after a future Chernobyl or a SARS outbreak or obligations to set up tsunami warning systems and to take those actions notwithstanding national security considerations. Changes in those areas are an important part of the context in which the litigation issues are to be seen.
I go back to 1948 to the Great Hall of Justice at the Peace Palace in The Hague and to two events. In August there was held just the second conference of the International Bar Association attended by two New Zealanders. The first conference of the bar associations and law societies of the world had been held only in the previous year, 70 years after the international lawyers had come together in the International Law Association and the Institut de Droit International and 50 years after the founding of the International Council of Women and the International Council of Nurses.
The New Zealand delegates were Sir David Smith who had just retired after 20 years as a judge of the Supreme Court and Sir Alexander Johnstone KC , the leader of the Bar who 10 years earlier had turned down the Chief Justiceship. Sir David addressed the conference, one of a most distinguished group including Ivan Kerno, the first Legal Counsel to the United Nations, and the Right Honourable Mr R.G.Menzies, referred to as a former premier of Australia.
Sir David was elected as one of the eleven member Executive Council. That international interest was a lifetime one. He was an original member of the New Zealand Institute of International Affairs and was named by the United States as a non-national member of the Peru-US conciliation commission.
The other event later that year in my current courtroom was the beginning of the hearings on the merits in the Corfu Channel case, brought by the United Kingdom against Albania which also counterclaimed. The case arose out of two passages by vessels of the Royal Navy through that strait between the Albanian Coast and the Greek island, passages which include Albanian territorial waters. Relevant to the innocence of the first passage, that of 22 October 1946, in which two warships were damaged by mines and 44 crew members were killed, were documents referred to in Navy written and oral evidence as XCU (later explained as Exercise Corfu).
As I will describe, the British Agent in the case, following discussions and decisions at the highest level in London, wrote to the Registrar in early 1949, in response to a request from the Court saying that the United Kingdom regretted that it felt obliged to refuse to produce these documents. The reason given was naval secrecy. The only very slight elaboration of that reasoning was that given by the Agent earlier in the hearings: “we see no necessity for disclosing certain technical matters which navies at all times keep secret”.
The Court said only this in its judgment when holding that the passage was innocent:
“In accordance with Article 49 of the Statute of the Court and Article 54 of its Rules, the Court requested the United Kingdom Agent to produce the documents referred to as XCU for the use of the Court.
Those documents were not produced, the Agent pleading naval secrecy; and the United Kingdom witnesses declined to answer questions relating to them. It is not therefore possible to know the real content of these naval orders. The Court cannot, however, draw from this refusal to produce the orders any conclusions differing from those to which the actual events gave rise. The United Kingdom Agent stated that the instructions in these orders related solely to the contingency of shots being fired from the coast - which did not happen.”
That bare statement is the tip of the iceberg. A careful scholarly account prepared by Antony Carty, based on the PRO records, demonstrates real differences among the responsible lawyers and politicians.
The British team was a most impressive one. It included at various times
Albania was essentially represented by one lawyer, Pierre Cot, a very talented and experienced French lawyer and politician.
There is good reason to think that this matter would be treated differently now. Recall the development of the law of Crown privilege or public interest immunity from the days of the Thetis case, Duncan v Cammel Laird, in the House of Lords, which would have been in the minds of the British team. But first I mention some matters, some principles, which have not changed.
One thing that has not changed is the Statute of the International Court and in particular its Article 49 which does no more than to empower the Court to call upon the agents to produce a document. Formal note, it says, shall be taken of any refusal. That recognizes, as do the provisions of the 1899 and 1907 Conventions relating to the Permanent Court of Arbitration, that an unqualified right to demand documents was not acceptable; there could, in the minds of the treaty makers, be legitimate refusals. When the Permanent Court of International Justice in 1936 was considering revisions to its rules the relevant committee did not think anything could be done about this: in its own courts, it said, every government must claim to exercise occasionally the right to refuse to produce a document on the ground of public interest and of that interest it claims to be the sole judge.
The Statute of the International Criminal Court, adopted more than 60 years after the provision in issue in the Corfu Channel case, does place some limits on the State’s power of refusal on the basis of its opinion of prejudice to national security interests but only terms of process. In the end the national power appears to remain and to prevail unless perhaps the Security Council intervenes. In a criminal prosecution, the Court may decide to stay a prosecution on the basis that non-disclosure may prejudice the defence, just as in a non-criminal case an adverse inference might be drawn.
The second matter of principle which presents itself or should is that of professional responsibility when decisions about disclosure are being made. This was something which greatly troubled the British Attorney who at one stage said to the Foreign Secretary that it would be better to disclose the documents. Shortly after that he wrote as follows to the Prime Minister (also a barrister):
“ It is a fundamental principle of the practice of the Courts of our country and of the conduct of our legal profession that parties to litigation are not entitled to use merely those documents which they think will assist their case and to suppress others which are inimical to it. I must make it clear that neither the Solicitor General, nor myself nor, I am sure, any of the other members of the Bar who are assisting us in this matter, would for one moment contemplate being parties to the course of conduct now being forced upon us by the Admiralty’s failure to procure and produce these documents earlier had our country’s international position not been so gravely involved.
As it is, we retain great misgivings about the propriety of what is being done, which we can only justify on the principle “ my country right or wrong, my country”. We all feel that we must insist that circumstances such as these are not allowed to recur.”
In the following month, at the beginning of the oral hearing, the Agent nevertheless felt himself able to say that “we see no necessity for disclosing certain technical matters”. And a little later after a round of exchanges in London, the decision was taken not to disclose.
Quite apart from the issue of ‘ my country, right or wrong’, on my reading no “technical matters” of a secret nature, except for a map reference and signal communications, which if they were still significant could have been edited out with an explanation, appear in the orders. They also disclose possible overflying of Albania territory which had been denied in the Security Council, but that is not a “technical naval secret”, and insofar as the documents explained as a purpose of the passage, the trailing of the British coat, that was known from other evidence and was not seen by the Court as defeating the innocent character of the passage.
But what has changed? What might now be done in the face of government opposition to disclosure on national security grounds?
I have already indicated some important elements – the ethical responsibility of the lawyers involved, the possibility of procedural steps which might facilitate disclosure in whole or in part, and the appropriate exercise of related powers, even if only of persuasion rather than decision, of the court or tribunal. I will say a word or two about the interaction of those three matters and will also, thinking of Cicero’s grand pronouncements, come back to one particular statement of principle or really of an ideal which was dear to Shirley.
International and national practice by legislators, by State litigants and by courts and tribunals increasingly recognizes that national security, or public interest, or ordre public, when invoked as a reason for non-disclosure has many different elements. Not all call for the same or indeed any degree of protection. For one thing the information may already be available and not only through Wikileaks or the world wide web which is only 20 years old or the opening of Eastern European archives from around the same time.
The information may on closer examination be only of historic interest. It may be in such a form that it does not disclose sources or methods of obtaining the information. A further factor is the information may appear to be of critical importance to the case of one party or the other, and that interest may be assessed as outweighing the interest in non-disclosure. Such differences are now increasingly taken into account in the writing of the law and in the practice of litigators and Courts and tribunals. A flat assertion of “State secrets” or “national security” should no longer be good enough. The parties with or without prodding from the Court or tribunal may in practice be able to sort these matters out for themselves. If they do not, the Court or tribunal in some situations may have power to make an appropriate order for disclosure. Even if it does not have the power, it may, as already indicated, draw an adverse inference.
A recent employment case in the United Kingdom raises the possibility of the Crown losing an appeal against an employment tribunal award of damages to a former employee when the Crown was willing to disclose evidence which it said involved matters of national security only to the Tribunal.
I have already mentioned the possibility of the stay of a criminal prosecution when evidence which may be important for the defence is not disclosed. Other possible procedural devices to be found in some legislation and proposed in litigation include:
(1) the evidence being made available by one party (almost always the State) to the court or tribunal but not to the other party or
(2) a summary being made available or
(3) a special advocate being given access to the information to enable the interests of the other party to be protected, but without that other party being informed of anything the advocate learns.
Albania in fact proposed that the XCU documents be made available to the Court but not to it but the British did not react to that proposal. An internal memorandum from the Solicitor General to the Attorney General said that “the presence of Slav judges means that whatever is disclosed will probably become public property”. The United States made a comparable comment about certain members of the Court, but publicly, when announcing in 1984 that it would take no further part in the case brought against it by Nicaragua.
The United Kingdom Supreme Court has recently ruled in an appeal brought by the Security Service and others that the Courts cannot, in the absence of legislation, receive evidence from, in that case, the defendants in proceedings for compensation for alleged detention, rendition and mistreatment by foreign authorities in various locations including Guantanamo Bay, unless the evidence was also made available to the plaintiffs.
The Court was also not willing to introduce such a major departure from principle or to use a special advocates procedure. On the first proposition presented by the defendants, the Court emphasized the principles of open and natural justice which are essential features of a common law trial. On the second, relating to the special advocates, the Court’s conclusion reflected evidence given to the Joint Parliamentary Committee on Human Rights by special advocates in which they expressed very serious reservations about the fairness of the system to those whose interests they are appointed to represent. Their evidence, said the Committee, was most disquieting as they portrayed a system in operation which is very far removed from anything like a fair procedure. The proceedings fail to accord a substantial measure of procedural justice – the standard set by the European Court of Human Rights. In the conclusion to its first report the Committee found it hard, it said, not to reach for well-worn descriptions of the process as “Kafkaesque” or like the Star Chamber. The Committee did not make this assessment solely on legal terms. The Special Advocate process, in its view, is very much against basic notions of fair play as the lay public would understand them. That close attention by the Court and the Committee to the facts, to principle and to good process is exactly what Shirley would expect of common lawyers at their best. 
You may think that I have said rather too much about process, about procedure, but it has been wisely said, I think, that the history of freedom is largely the history of the observance of procedural safeguards.
I end with one other principle or really an ideal to which Shirley gave wholehearted support, especially through the CND – ridding the world of nuclear weapons.
I recall speaking on platforms about 40 years ago with her on that issue in Hamilton and at the University here with the then Pro-Chancellor, Dick Simpson, in the Chair. The zero option now appears to be received orthodoxy.
Would Shirley be pleased? She would certainly say that much hard work on the detail remains to be done. Many challenges still face us. As Shirley would say “Carpe Diem”.
 Judge, International Court of Justice. Thanks to David McKeever for excellent research and ideas. This version is subject to revising and referencing.
 (HL Paper 64/HC 395 2010; HL Paper 157/HC 394 2007;
Stanley Corngold and others eds, Franz Kafka, The Office Writings (2009)
Last updated on the 6th July 2016