Supreme Court of Tasmania

THE RULE OF LAW AND THE HEALING OF THE COSMOS

 

Sermon on the Occasion of the Opening of the Law Year, 2009  

Rev Prof Michael Tate AO

 

 

Justice Matters

 

Is there any link between Tasmania, Tanzania and the Hill of Calvary? 

 

In the year 1824, in the first criminal trial held in the Supreme Court of Van Diemen’s Land, a white man (William Tibbs) was convicted of the manslaughter of an Aboriginal man [1]. 

 

Justice was done.

 

In the year 2008, in a criminal trial held in the International Criminal Tribunal for Rwanda in Arusha, Tanzania, Theoneste Bagosora was convicted of genocide, crimes against humanity and war crimes in relation to the Rwandan massacre of some 600,000 Tutsis over the course of 80 days [2].

 

Justice was done.

 

In the year 33, in a criminal trial conducted in Jerusalem by the Roman Governor, an itinerant Galilean, having been declared by Pontius Pilate to be innocent of the charges laid against him was nevertheless sentenced to execution by crucifixion [3].

 

An injustice was done.

 

An injustice of such magnitude was done that we read in the Gospel that ‘The sun was darkened’, and in another Gospel that ‘The earth quaked, the rocks were split’. [4].

 

There was a rupture in the fabric of matter. The earth itself revolted against the deliberate killing of an utterly and notoriously innocent man.

 

Those who adhere to the Rule of Law and seek to ensure its practice, whether according to a venerable tradition as here in Tasmania, or whether according to a new phase of world civilization as in Arusha, Tanzania –


are helping to mend that rupture and make good that disruption,
are helping to restore and recreate the cosmos,
the order of reality as designed by its Creator.

 

Doing justice matters, and matters to matter.

 

 

Moral Ecology

 

I have always been fascinated by the common illustration of Chaos Theory. The fluttering of the wings of a butterfly in the jungles of the Amazon eventually contributes to a storm over Chicago.

 

Such is the interconnectedness of the physical universe.

 

The Jewish and Christian scriptures we have just heard point to a more astounding truth: there is a moral ecology to the Universe, far deeper than the deepest Greens suspect. The doing of justice or the perpetrating of an injustice affects our planet for good or for ill.

 

And you, in your various roles in the law, on the bench, in the practice of the legal profession, as court officials, as Attorney General, are one of the groups in society with a special vocation and task to ensure that that moral ecology makes the world a place where humanity can flourish.

 

One dimension of this moral ecology is the Natural Law — the precepts of a Constitutional Law for humankind.

 

Understanding of that Natural Law is, of course, accessible to all, whatever their religion-based or other frame of thinking.

 

 

IHL and Juridic Structures

 

Nowhere is this better illustrated than in the field of International Humanitarian Law: the legal form of the common morality of humankind concerning the waging of war.

 

As you will know, after decades of paralysis, following the Nuremberg and Tokyo War Crimes Trials, the Security Council, recognizing the grave breaches of this body of law in the former Yugoslavia, in the early 1990s established the International Criminal Tribunal for the former Yugoslavia with its seat in The Hague. [5]

 

You may not know that the Australian legal profession has been absolutely crucial to the establishing and the success of this new juridic structure. Sir Ninian Stephen was a judge on the first trial bench to be convened. Mr Graham Blewitt, a New South Wales lawyer, was, as Deputy Prosecutor, the driving force organizing the whole prosecution effort. Justice David Hunt (the judge in the backpacker murders trial) was the first judge in world history to issue an indictment and arrest warrant against a serving Head of State, moreover during the course of armed conflict, that is against Slobodan Milosevic. 

 

The War Crimes Tribunal in The Hague would never have got off the ground or succeeded without Australian lawyers, and investigators seconded from Australian police forces.

 

They have helped ensure that the era of impunity for gross violations of International Humanitarian Law is at an end. 

 

The Natural Law which forbids the deliberate killing of the innocent is at last taking juridic form in providing for the prosecution of the aptly named ‘Crimes Against Humanity’. 

 

The success of The Hague tribunal provided the experiential foundation for the Rwandan tribunal and now, for the International Criminal Court established by the Treaty of Rome, which Treaty has been ratified by Australia.

 

The Law Council of Australia played an honourable role in that ratification, making a submission to the relevant Committee of the Commonwealth Parliament. The Law Council refuted criticism of the Rome Treaty and demonstrated how, by incorporating the crimes of genocide, crimes against humanity and war crimes into Federal Law, Australia could retain primacy of jurisdiction vis a vis  the ICC.

 

 

Australian Legal Profession and the US President

 

There is further work to be done by your professional associations.

 

Respect for the rule of law is being asserted by the President of the United States of America, Mr Barack Obama. 

 

Within a few hours of his inauguration, his administration filed a motion seeking the suspension of the operations of the military commissions at Guantanamo Bay for 120 days. And his renunciation of the use of torture was explicitly linked to securing the best values of the US tradition. Which tradition clearly includes the Rule of Law.

 

Will he forward the Rome Treaty establishing the ICC to the Senate for its advice and consent, required for ratification? 

 

I don’t expect so, at least not in the short term. 

 

But, whilst a candidate, Barack Obama said of the proposed prosecution by the ICC of the alleged perpetrators of the genocide in Darfur said:

 

‘It is in America’s interests that the most heinous of criminals, like the perpetrators of the genocide in Darfur, are accountable. These actions [by the ICC] are a credit to the cause of justice and deserve full American support and cooperation.’ [6] 

 

The Law Council of Australia wrote to the then Secretary of State, Colin Powell, in July 2000 concerning some consequences of the United States opposition to ratification of the Rome Treaty.

 

I would ask you to write to the new Secretary of State, Hillary Clinton, urging that Mr Obama’s commitment be fulfilled in as plenary a manner as possible.

 

We should look forward to affirmative votes by the United States in the Security Council referring matters to the ICC. 

 

There could also be the provision of funding to enable the ICC to operate as effectively as possible.  During the campaign, John McCain promised to voluntarily help fund the Darfur prosecutions, so one might expect cooperation on this aspect “across the aisle”.

 

The Law Council of Australia should lobby the new Secretary of State, Hillary Clinton, to press for the signing of the Rome Treaty establishing the ICC. She should be well disposed to receive such a submission.

 

The treaty was signed by the United States in the dying hours of the Clinton administration. President George Bush withdrew the signature. Even though it falls short of ratification, to restore the signature would prevent the United States from campaigning in opposition to the ICC.

 

 

Australian Legal Profession and Expanding the Scope of IHL

 

There is one glaring anomaly in this tale of recent virtue.

 

The use of the weapon of mass destruction most capable of killing vast numbers of innocent civilians is not yet subject to the Rule of Law.

 

The use of the weapon which could destroy whole civilizations and cause environmental damage having a devastating impact on future generations has not been definitively declared to be always subject to the Rule of Law.

 

I was part of the Australian legal team which appeared before the International Court of Justice in The Hague on the seeking by the General Assembly of an Advisory Opinion on ‘The legality of the use or threat of use of nuclear weapons’. [7]

 

I was in the Chamber on 8 July 1996 to hear the Court deliver its Opinion. 

 

By seven votes to seven, by the President’s casting vote,  “… The threat or use of nuclear weapons would generally be contrary to … the principles and rules of humanitarian law. However … the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self defence, in which the very survival of a State would be at stake.” [8]

 

I would hope that your profession would continue to argue for the supremacy of the rules of International Humanitarian Law in the conduct of warfare, even in extremis.

 

 

Harmonies of Justice

 

Your advocacy would not only continue to serve the Rule of Law as you have done here in Tasmania since the 24 May 1824.

 

If my thesis earlier is correct, then according at least to the Jewish and Christian scriptures, and I suspect in many other religious traditions, you will be contributing to the healing of the rupture of the Planet brought about by the commission of grievously wicked crimes cutting at the root of civilization.

 

You will be helping prepare for the day when there will be no cause for the sun to be darkened, or the earth to quake because the innocent are deliberately slaughtered.

 

You will be helping prepare for the day when the cacophony caused by ethnic cleansing, the sexual abuse of women in war, and other crimes against humanity, will be silenced.

 

As Pythagoras believed, instead of discord we will hear ‘the music of the spheres’ reverberating throughout our Cosmos.

 

Because of your service to the moral ecology of this Planet we will hear

Harmonies of peace

Harmonies of justice.

 

 

 

 

Rev Prof Michael Tate AO



[1]  R. v. Tibbs, Supreme Court, Van Diemen’s Land, Source: Hobart Town Gazette, 28 May 1824.

[2] The Prosecutor v. Theoneste Bagosora et al., Case No. ICTR-98-41-T

[3] Luke 22: 14, 22

[4] Matthew 27:51

[5] United Nations Security Council, Resolution 827, adopted 3 May 1993.

[6] http://my.barackobama.com/page/community/post/parimi/gGx73Y

[7]United Nations General Assembly, Resolution 49/75(k), Request for an advisory opinion from the International Court of Justice on the legality of the threat or use of nuclear weapons, 15 December 1994.

[8] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996) 226.