Several years ago I ripped off the first couple of chapters of a book that I had no intention of writing in full.  The idea was to explore in dramatic form the question of how Western governments might be taken to the International Criminal Court on a charge of committing a genocide agaist their native European people.  The two essays that it took to accomplish the task were pretty well received by the then MR commentariat.  But, in fact, they would both have benefitted from a longer period of gestation and a more considered approach to the actual writing.

Now I’m re-writing them in a more developed and more narrowly-focussed form for the purpose of offering the finished product to PA for their site.  The whole exercise should run close to 8,000 words, the first half of which is posted below.  The second half will follow in two or three days.
        —————————————————————————————————————————————————————

“The Court will hear your opening statement if you please, Mr Truscott-Brown,” announced the presiding chief justice in fluent but by no means native English. For that was to be the only language spoken in the room during the next three undoubtedly arduous days. No translators would be whispering into microphones, no one in Court would be hurriedly adjusting his or her earpiece to catch some mangled phrase. This was an entirely English, or British, affair except that it was taking place at The Hague before one judge from Montreal, another from Heidelberg, and a third from Uppsala, all of whom had forgone the privilege of hearing the proceedings in their native tongue.

“Thank you, your Honour,” came the reply in ringing received pronunciation. George Truscott-Brown QC OBE, FSA, RHS, lead advocate for the plaintiff, eternal renegade and inveterate fighter of lost causes, peered over his reading glasses at the unknown quantity which was the bench.  He steadied himself inwardly and, with a final, ever so slightly uncertain caress of the bundle of papers on the table in front of him, rose to begin his work for the day.

“Learned judges, may I at the outset, on behalf of the appellants, myself and my team, state for the record of proceedings our sincere gratitude to each of you and to the ICC as a whole for agreeing to hear this application.  We fully appreciate that that decision alone broke new ground.  So your Honours will be acutely aware that this is a conceptually novel and therefore, in some quarters, controversial action which presents a number of tests for the 1948 Convention. If the plaintiff is successful at this review, a subsequent plenary hearing may set precedent in several areas of high significance for the jurisdiction and practise of the ICC and, specifically, for its future interpretation of Article 2.  By that we mean, in particular, its interpretation of prevention in the context of the modern Western society where armed conflict is absent.

“Mindful, therefore, of all this, and of the profound responsibility which would weigh upon the eventual trial judges, it is our intention, at the kind invitation of the Office of the Prosecutor, to present your Honours with the greatest possible wealth of evidence and legal argument within the time available to us. It is our firm belief that all of the former will be ruled admissible and the latter applicable, and that your Honours will be led to the only possible conclusion that the Court must grant the Prosecutor leave to investigate the complicity of those individuals named in the Court papers in the creation of conditions of life calculated to bring about, over time, the physical destruction of whole or part of the peoples native to Great Britain.  It is our firm belief that we will clear that high legislative bar.”

And so it began.

In private, Truscott-Brown had never really believed that the case would come this far.  But here they all were, within just one review of the ICC taking it on, and with the prospect of a media sensation of a trial of serving and former ministers of the Crown and, by extension, of seven decades of British politics itself.  But he had not been alone in his scepticism.  No one of any note outside their little circle thought any of this could happen - not his legal peers, certainly not the politicians, not the civil service or the revolving cast of back-office advisors, not the Attorney General of any government past or present or any of his officers.  It had proved a very nasty shock indeed for them all, and a shot across the bows of government in every other European country where the life of the people of the land had been held just as cheap.  Every august president, every sleek, self-satisfied prime minister, every jockeying, ambitious minister of home affairs or justice, immigration, integration, equality, or whatever they liked to call their sinecures these days, was looking on and thinking, “There but for the grace of God go all of us.” 

They were absolutely right to harbour such fear.  If, at the end of it all, this case actually produced a guilty verdict the world was going to change.  The history not just of Britain and the British but of every European land and every European-descended people would change.  John Driscoll, Peter Upton and Veronica Haynes, respectively a retired venture capitalist and one-time poker professional, a constitutional historian teaching at Brasenose, and an ONS statistician sacked for talking to The Guardian, no less, would be ranked among the worthiest of national heroes, and the names of five generations of Westminster politicians would go down in infamy, with every possibility of a lengthy custodial for the twelve named in the application.

Of course, Driscoll, Upton, and Haynes had believed ardently from the start.  They did not waver one iota as the scarcely veiled insults flew and the summary rejections mounted.  As yet no reputable London practise would touch the case.  All but a handful refused even to meet with them.  On the occasions that there was a meeting it was invariable difficult and brief.  One Middle Temple harridan, offended on behalf of all humanity, had declared with uncharacteristic emotion, “It’s ridiculous.  Actually it’s a species of legal hypocrisy.  You are seeking some kind of Apartheid.  But that’s been a crime against humanity for forty years.  The ICC could never allow its process to be used to, in effect, licence a subsequent crime it is bound to recognise under Article 7 of the Rome Statute.”

“So you are saying,” replied Upton, who did the talking on these occasions, “that Rome supersedes Geneva, and no native people may liberate itself from a coloniser without that constituting a crime of Apartheid?  By which folly you legitimise any and all colonisation, and you render defunct the very principle of self-defence.  Or perhaps we are talking of different but equal instruments here,” he continued, “and Rome and Geneva each have their own quite separate and distinct fields of application.  Otherwise Rome could be used by every group with its eyes on another’s land and resources, which really would be a legal hypocrisy.”

“You said coloniser! she retorted, genuinely shocked.

Upton gazed blankly back wondering if he had missed something.

“You said coloniser!” she repeated in the exact same tone of wounded surprise.  It was a thought no one in her circle would entertain.  Ever.  “These are ethnic minorities,” she explained with all the conviction of a religious fanatic, “They have as much right to be here as you do.”

Upton smiled back patiently, and shot her down again, “Let us go where the logic takes us.  To qualify as an authentic ethnic minority, as opposed to a population declared such by a ruling class which is busily engaged upon importing it ... for that to be the case there must be a deep generational history on the soil and there must also be a matching generational acknowledgement from the majority group.  Plainly, the first cannot apply to the populations in question here, which only arrived over the last few decades and are still arriving at pace, and the second cannot be ascertained owing to the ruling class’s extreme prejudice in the treatment of dissenting native opinion.  Which dissent is considered in government circles to be general to the native population, by the way.  We have it from them in their own words.  The miracle of FOI!”

The poor woman thought fleetingly about claiming that this had always been a multiracial country, as such ideologues do.  Her mouth opened.  She took a breath.  But sound came there none.  A lawyer, after all, has a highly developed nose for positional weakness.  The comforting and, for her, habitual thesis that her first from Cambridge and her position as a salaried partner with a respected London firm automatically implied that clients were there to benefit from her sagacity, not the other way round, had taken a hit.

Of course, Upton’s adversary was not at all unusual in possessing, or being possessed by, the liberal mentality on race and immigration.  So far, the opinion of her peers was uniformly that not only was the trio’s case baseless in law and without prospect of success, it could only give succour to racists and xenophobes.  Another human rights specialist whom Upton and Driscoll had approached - a silk at Lawrence Maltravers well-known for winning a number of high-profile cases - found the very idea of a people native to Britain offensive.  He spluttered, “When you define your people as belonging to a particular racial group excluding others that is racism.  That is judging people totally by their race.  What else would you call it except racism?”

“So let’s get this straight,” replied Upton wearily, “You say that nobody can identify his own people without that being racism.  So, we are all to understand that the Latin prefix ‘gen’ is immoral, and all humanity has, throughout its existence, disgracefully supposed itself to possess some inherited particularity which tells us to whom we belong.  Which, oddly enough, 21st century DNA analysis confirms.

“It is an immoral act, then,” he concluded with heavy sarcasm, “for the ICC investigators to bring mass murderers to book on the basis that their actions were directed against others not in that others’ capacity as individuals but as members of a national group.”

A visible shadow of dismay passed over his interlocutor’s face.  But it didn’t last.  Lawyers are adversarial by nature, and this one wasn’t finished yet.  “Even if you are right about that, you’re wrong about Article 2c because it refers to physical destruction by ... OK, by means that may not be direct, but they have to be identifiable too.  Confiscating food, salting the land, poisoning wells ... that sort of thing.  But nothing remotely like that applies to this country.  There is no poisoning of wells and no physical destruction whatever.”

“You’re interpolating your own prejudices into the text, I’m afraid.  Although I grant you that is to some extent invited by 2c,” Upton observed dryly and with the dismissive hauteur of a senior Oxford don confronting a student caught cribbing.

“I’m doing no such thing,” came the instant and indignant reply, “You and Mr Driscoll have completely misread the place of diversity in the modern society of tolerance and justice, as a result of which your argument is without foundation; and in progressing it you fail to take genocide seriously.”

“You are interpolating,” Upton repeated, “whereas we are abiding strictly by the text - which, by the way, is silent on both method and duration.  But it is a silence, I would say, more of omission than commission.  If you’re interested, the history of it is that the surviving colonial powers feared a formulation that was both broad and specific enough to put them in the dock for their own past conduct.  The source documents show that they would rather the entire clause had not been there at all.  But Professor Lemkin was insistent, and he had the moral authority.  So the most they could achieve was to stymie what they could of it, with the inevitable result that 2c today is far from satisfactory for anybody.  It is still there to be used, but the legal substance is implied rather than categorical.  In consequence, a positive argument has to be made in court.  Verification of the ultimate outcome for the group is at a premium, as is proof of the intent of those who exercised control over it.  In our case we can demonstrate the first numerically and prove the second via testimony and written evidence.”

“But it’s ... it’s not happening,” the lawyer shot back, finding no further rational argument to clothe his exasperation.  “There is no genocide.  You’re making it up like ... like ... racists!”

“We have the evidence,” Upton said again, stressing each word.  “We can prove it.”  He leaned forward in his seat, and wrapped out the rhythm of his next remarks with a forefinger on the solicitor’s desk, “Your real problem is that our action would implicate the professional class ... your class and mine ... in making a victim of a party you ... we ... have lazily and mechanically assumed to be guilty of some inhering sin and, therefore, unworthy of any and all defence.  Unworthy even of existence itself.  Your problem is that when this assumption meets with even a cursory interrogation it breaks into pieces and, like some latter-day liberal Humpty, cannot be put together again.

“The success of our action would have fatal consequences for your own assumption about the indigenous British tribes.  Everything that has been constructed on the basis of it would be demolished.  Everything that has been concealed, every deceit, every betrayal, would be unconcealed.  That, sir, is why you are so afraid to commit to our cause.  You would advance the destruction of the worldview to which you have so meekly conformed, which conformism alone explains what position and respect you have achieved in life.

“Good day.”

Back on the Chancery Lane pavement with Driscoll, but still without legal representation, Upton dropped his professorial mein and observed, “Smug little git.  Didn’t understand the bloody law anyway.”

“Don’t let the bastards get you down, Peter,” said Driscoll,  “All this crap we’re getting doesn’t reflect on the viability of our case in any way.  A lot of it is the social pricing thing you raised at the end.  They are weak and afraid they will be committing professional suicide.  Social too, I expect.”

“I dunno know, John,” said Upton, “God knows, I’ve seen enough intellectual cowardice from the senior fellows in college.  But I expected better from the legal profession.  An open-mindedness borne of material greed, if nothing else.”

They walked to the corner with High Holborn to hail a black cab.  Upton always insisted on a black cab, hailed not booked.  He was still exercised from his encounter in chambers.  “It’s the moral inversion which confounds me,” he suddenly announced as they waited, “More or less everything else one can put down to a difference of opinion.  I don’t mind that.  But short of mass hysteria I cannot explain, at least to my own satisfaction, how and why so many obviously educated and discerning, even quite cerebral people ... people I might otherwise respect ... have surrendered to this tawdry, hobgoblin tyranny of anti-racism.  They look straight past every sign screaming manufacture and fraud.  They can’t access the moral circuits in their brain that would tell them that our argument flows entirely from the principle of the sanctity of human life.  Instead, they traduce it ... a natural moral feeling ... a universally human feeling ... as racial prejudice on the sole basis that the sacred life in question is that of a people with white skin.

“What is the power this aberrant, five-minute chicken-soup ideology has over them?  I have never understood it.”

“Well, it’s no use asking me,” Driscoll cut in, “I didn’t get anywhere near a university education.  Perhaps that’s why I don’t have a refined liberal sensibility.  Every day of my adult life I’ve been guided by my animal cunning, and have the scars and the cash to prove it.”

“Well cash can be king when you have a couple of hundred million, I suppose,” Upton said, smiling with paternal affection at his co-conspirator.  But then he shook his head in resignation.  “Of course there’s nothing refined about the hold that anti-racism has on people,” he said, “Or liberal in the classic sense of that word.  Somewhere along the way the old Western intelligentsia, to which, until now, I have believed I belonged, has handed ownership of its own stupendous Palace of Versailles, which its thought had constructed and adorned for thirty generations, to the thieves and murderers from the local bridewell; and they, naturally enough, have made a dark and hellish prison of it.  How did that hypocrite lawyer put it?  The modern society of tolerance and justice?  Shan’t forget that doozy in a hurry.”

His gloominess, heavily larded with dismissive sarcasm, was well-founded.  It was all too apparent now just what they had taken on with this adventure.  The chances of finding even one free-thinking silk with an appetite to tear down the British Establishment and all its deeds were slim enough in this day and age without the additional issues of race and racism.  With them, free thought went out of the window, and the need to conform to Establishment opinion became ever more pressing.  And that was without the practical difficulties.  Even if they found someone to take them on, how could he or she go to the ICC Prosecutor with a genocide in which not a single shot had been fired, nor to which a single death could be attributed directly to the defendants, and in which hitherto no politically respectable observer believed.  Then, the precedence for a prosecution under 2c was so thin and the terms of reference of the Court itself so narrow, there was no extant legal basis on which it could sanction a prosecution anyway.  How does one take a crime before a prosecutor who cannot investigate it, and expect him to take the case before a court which cannot hear it?

Even so, the trio pushed on with their search.  But their reputation as carriers of the plague preceded them.  It was looking bleak for them in London.  Then, early on a Saturday morning in April, someone completely unknown to any of them had the gambler’s confidence to email Driscoll “on the matter of international law which is of particular interest to your group and, I assure you, of great interest to me professionally.”  The sender was a Jon Dunstan, HR advocate and junior partner at Lawrence Maltravers.  Driscoll wasted no time in calling his mobile.  Ten minutes later the formalities were done and a meeting was agreed in principle as soon as diaries allowed.

In the evening of that same day George Truscott-Brown, ruddy-faced and very well-fed, dinner-jacketed among the academics, was standing in his place at High Table as guest of honour of the Dean of Balliol.  A gratifying haze of candle smoke, mirth and mellow contentment had settled upon the hall and its sixty diners, all of them paying guests.  Nothing goes down better in such a place and on such an occasion than a catalogue of one’s own youthful indiscretions, and Truscott-Brown ... TB to friend and enemy alike ... had a rich and artfully embellished store upon which to draw.  He wound up with an account of his first brush in court with government to prove the point – a favourite one - that no matter how much of a hash one makes of things there is always one body in life which aspires to make a bigger one.

Twenty minutes later he was standing by the main doors grasping the hands of people whose names he did not know, and would certainly not remember.  When an opportunity came to disentangle himself he walked a few feet away to a figure in academics who had been waiting patiently, and quite alone, to meet him.

“You’ve been trying to catch my attention all evening,” he said, extending his right hand.

“I didn’t want to intrude … well, perhaps I did.  Was I that transparent?  Actually, I wangled a place at High Table this evening because I do want to meet you.  My name is Peter Upton.”

“I know who you are,” replied Truscott-Brown, “The face on the dust-jacket.  I am one of your faithful readers. Constitutional England, Among the Anglo-Saxons ... very fine scholarship, if I may say so.  Law and Out Law after the Conquest ... yes, quite indispensable.  It’s a privilege to meet you ... erm,” he voice tailed off.  He placed a hand on Upton’s arm and pulled him a few paces further away from the knot of people by the doors, “I also know why you would want to meet me.  I heard the whole story from one of my esteemed number who met with you and your colleague Mr Driscoll four weeks ago.  Do you want to know why he turned you down?”

“Well, we rather assumed it was about preserving his reputation.”

“Well, you assumed wrong.  I grant you there’s many a prig in the lawyering game.  But for the most part we are a fickle bunch.  If the money’s good we’ll dance with the devil.  We frequently do.”

Truscott-Brown was staying the night at a small hotel ten minutes away in Hampton Poyle.  They met in the bar at 10.45 pm, and were spoilt for choice for a quiet corner to sit.

“So this fellow you approached last month,” Truscott-Brown began, as bluntly as possible, “He had been leaned on no less than three times in the seventy-two hours before you saw him.  First, the principal partner was contacted by the firm’s biggest client.  You know, all very predictable.  Any association with racial prejudice would be financially unhelpful - that sort of thing.  Then another senior partner, very Jewish, started making a fuss.  There’s a rumour that the Board of Deputies had called chambers and leaned on him.”

“The Board of Deputies?  Are you serious?”

“Only a rumour, old chap.  Can’t possibly be anything in it, of course,” Truscott-Brown delivered the line deadpan like a seasoned stand-up, then resumed, “Anyway, just when it seemed that your consultation was to be cancelled there was an unannounced visit from two very unsubtle, very sinister-looking chaps who booked in as Justice Ministry drones, but who you can assume were Thames House.”

“Thames Ho… spooks, you mean?  We’re being watched by MI5?” asked Upton, not at all charmed by the thought - something he had never considered before - that the security services might reckon him an enemy of the state.

“Not just watched,” said Truscott-Brown, “Systematically opposed every step of the way.  The interesting question is why they decided to visit in person.  Change of plan, no doubt.  They ordered our friend, actually ordered him, not to cancel the consultation but to see you and firmly discourage you.  Which he did, of course.”

“I don’t understand,” replied Upton, “What’s the difference, from their point of view, between an immediate rejection by email and a rejection face-to-face across the conference table?  They’re both damned discouraging, believe me!”

“To put maximum pressure on you, of course,” Truscott-Brown explained, “To dispirit you, exhaust you, soften ... you ... up.”

“But for what?” Upton asked, greatly nonplussed, “What would be the rationale for softening us up?”

“There is always a reason for everything they do,” said Truscott-Brown sagely.  “Perhaps they have decided not just to shut you down at the outset but to capture you ... contain you.  Let you run-on, but compromised, of course ... designed to fail.  It’s what I would do in their position because that way potential future litigants will be more likely to conclude early on that it’s impossible to prosecute, and so give up or not bother to try at all.  But if the problem is the reluctance of the profession to even look at the evidence, then the grand cause retains its power and mystique; and they don’t want that.”

Upton nodded pensively.  “And what about you?” he asked, finally arriving at the question which had been on the tip of his tongue all evening, “Are you also reluctant to look at our evidence?”

The reply was immediate but equivocal.  “Indeed not.  But perhaps you should decide as a matter of course whether the person looking is Truscott-Brown, Queen’s Counsel and medieval history buff or, say, a Charrington in silk.  Y’know, the owner of the second-hand shop in 1984.  Each of you must start thinking about the threat you pose to the state and the state’s inevitable interest in your vulnerability.”