Spanish judge Baltazar Garzón rose to fame in 1998 when he issued an arrest warrant for former Chilean dictator Augusto Pinochet for the alleged murder and torture of Spanish citizens in Chile. Such use of universal jurisdiction was unprecedented — and it was only the beginning. Since then, Judge Garzón has investigated Bush Administration officials for alleged crimes against humanity and indicted Osama Bin Laden. Yet as the AP reports, Judge Garzón has been indicted himself for ignoring a 1977 amnesty law and exceeding his jurisdiction in his investigation of the alleged atrocities committed by Gen. Francisco Franco and his allies during the Spanish Civil War and under the Franco regime. The NYT thinks this an outrage, while the WSJ thinks it is poetic justice. Overlawyered’s Walter Olson also comments here.
UPDATE: At Opinio Juris, Julian Ku says this is a “big deal.” More here.
Sill says:
According to that Overlawyered post, the Pope is going to be indicted in the UK? What?
April 13, 2010, 9:23 amBlue says:
Couldn’t happen to a more deserving guy,a thug operating under color of law.
April 13, 2010, 9:41 amcboldt says:
How can “universal jurisdiction” be exceeded?
April 13, 2010, 9:55 amStuart the Viking says:
With “universal times infinity plus one jurisdiction”!
s
April 13, 2010, 10:09 amDavid Newton says:
@Blue: I hope you mean Garzón rather than the Pope!
@Sill: The culprits in the Pope’s case are the fanatically atheistic Professor Richard Dawkins and the journalist Christopher Hitchens. Besides the minor point that he is a head of state and thus de facto and de jure immune from anything except the International Criminal Court whilst occupying that position, they are also going down a legally shaky root with the charges they are proffering. They are accusing the Pope of crimes against humanity for his alleged cover-up of paedophile priests in the Catholic church. Genocide, torture and piracy are crimes against humanity with universal jurisdiction exercisable. Cover-up of paedophile priests is not a crime against humanity and is not subject to universal jurisdiction. I don’t even know if such a cover-up would be subject to extra-territorial jurisdiction given how long ago it is alleged to have taken place.
April 13, 2010, 10:09 amAnon21 says:
Ok! So I take it that Spain does not have the doctrine of judicial immunity.
April 13, 2010, 10:10 amMartyA says:
Over the many years that I used to read the NYT, any news about the Spanish Civil War was published on the front page, at the bottom center. Is that still the case?
April 13, 2010, 10:13 amBob from Ohio says:
It seems there is no Spanish word for Schadenfraude.
April 13, 2010, 10:15 amcboldt says:
– I take it that Spain does not have the doctrine of judicial immunity. –
April 13, 2010, 10:16 amThe linked articles and comments following do a good job of explaining the general lay of the issue. On the remedy side of the equation, the worst that happens is he is removed from the bench.
He operates out of Spain, and the powers that be in Spain will resist opening a review of the Franco regime’s actions.
U.Va. Grad says:
Dawkins and Hitchens aren’t trying to get the Pope arrested; the Sunday Times blew the story. They are, rather, supporting a legal effort to bar the Pope’s entry to Great Britain, which is a very different thing from trying to arrest him.
April 13, 2010, 10:17 amDjDiverDan says:
Imagine that – Spanish law allows the indictment of a sitting judge for exceeding his jurisdiction and ignoring the law. I’ll bet that’s one little area of foreign law that a number of Americans would LOVE to see the Supreme Court embrace!
April 13, 2010, 10:20 amCal says:
David Newton: So the Pope is immune under international law, who believes in international law anyway, we can’t even cite it, here, in America.
April 13, 2010, 10:21 amUrso says:
Anon21, a Spanish commentator on OJ seems to have a pretty good grasp of this. He says the crime charged is “prevaracacion” – not the same, apparently, as simple “prevarication” but meaning “pronouncing deliberately wrongful decisions.”
I doubt in the US this would be grounds for impeachment of a federal judge under Article III (absent some bribes or other crimes taking place), but it would certainly be grounds for a recall of an elected state judge. And even in America judicial immunity doesn’t extend to a bar discipline matter, which is what this appears to be analogous to — taking his license away for 10 to 20 years.
April 13, 2010, 10:26 amDavid Newton says:
@Cal: The people who believe in what really is international law, ie the relations between nation states are those who have a self-interest in it. That is where the Geneva and Hague Conventions came from. That is where the Vienna Convention came from. It can be summed up as, “You scratch my back and I’ll scratch yours.” If the Pope as a head of state can be arrested then so can Barack Obama. Enlightened self-interest is what keeps the wheels of the international relations world turning.
@DjDiverDan: US law does have such a mechanism: impeachment. However after having seen what happened to Alcee Hastings after his impeachment I hardly have a great deal of faith in the process.
April 13, 2010, 10:27 amcboldt says:
– Spanish law allows the indictment of a sitting judge for exceeding his jurisdiction and ignoring the law. –
April 13, 2010, 10:28 amCongress has the impeachment power, so could accomplish the same thing if, e.g. a judge started to investigate something Congress firmly intended to be left alone; and indicated so by passing an amnesty and/or otherwise circumscribing jurisdiction.
anon says:
Presumably the sexual abuse of children is a crime whereever it happens.
If there is evidence that its happening, a good place to start the criminal prosecutions would be with the individuals involved in committing the sexual abuse.
Trying to indict the Pope has a certain sort of emotional appeal, but its bad policy for any number of reasons, not the least of which is that simply tossing him in jail isn’t going to address the abuse.
April 13, 2010, 10:32 amThales says:
This does smell fishy–the parties motivating the suspension are interested neoFrancoists. That said, a lot of the Spanish left does not want the past dug up either, including, curiously, some of the disappeared poet Lorca’s relatives. I agree Garzon is weird and extremely zealous, but does anyone think it fundamentally unjust (as opposed to, say, unwise) that murderers and thugs like Pinochet and Franco are held to account? It seems he is poking into some things the Spanish parliament and powerful interests have been too cowardly to investigate, for fairly obvious reasons. Is this very different from, say, the truth and reconciliation commissions set up by South Africa and Rwanda?
April 13, 2010, 10:35 amThales says:
Also, I find it disappointing (but unsurprising) that the WSJ editorial board found it necessary to put scare quotes around the word “torture.” The allegations (however imprudently or in excess of jurisdictional bounds they may have been brought) against the Bush administration officials are that they committed torture. It’s not a word game.
April 13, 2010, 10:40 amAnderson says:
Garzón seems to’ve relied on what is at least a colorable legal theory, i.e. that amnesties excusing certain grave crimes are legally null and void.
I confess to not being very interested in the legal opinions of people who think that torture and murder of prisoners is unworthy of investigation. Probably they have the same view of me, given my notion that such crimes by Americans should be investigated and prosecuted by the U.S., or failing that, by some other civilized country.
April 13, 2010, 10:49 amThales says:
Much more factual color in The Economist:
http://www.economist.com/world/europe/displayStory.cfm?story_id=15875987&source=hptextfeature
April 13, 2010, 10:54 amNot Anderson says:
I’m with you, Anderson: I’m not interested in what you have to say, since you’re a person who clearly doesn’t know “civilized” from what, nor do you have any idea what torture is, apart from Dick Cheney’s existence.
April 13, 2010, 11:01 amJustin says:
Putting aside the merits of the indictment, the WSJ’s joy in it seems….peculiar, no? Even if one thinks what Garzon did was illegal or even unwise, nobody here thinks what he did was evil in any real sense of the word, you would think.
April 13, 2010, 11:02 amMartinned says:
Does anyone know if it matters that he is an examining magistrate, not a “sitting judge”?
April 13, 2010, 11:11 amTBlakely says:
Funny how this judge only sees Crimes against Humanity being committed by ‘conservative’ leaders.
April 13, 2010, 11:11 amTexas Lawyer in DFW says:
So, the New York Times is interested in international slander and defamation law being applied to the Times?
That would be a disaster of epic proportions, but it is where their position appears to take them.
April 13, 2010, 11:13 amMartinned says:
From the (seemingly) most knowledgeable OJ commenter:
April 13, 2010, 11:17 amEvilDave says:
It is tough to cite something that doesn’t exist.
April 13, 2010, 11:19 amExactly what do you think the Blue Book citation format is for international law?
Martinned says:
How do you figure that?
April 13, 2010, 11:20 amMartinned says:
Really? How about the GAL case in Spain, which he also investigated? That case implicated Garzon’s own PSOE party in some pretty serious terrorism, but Garzon went after them anyway. (The second link is to the Spanish wiki article on the subject, since the English one doesn’t say anything about the investigations into the matter.)
April 13, 2010, 11:30 amUrso says:
Good question. Of course in America we don’t really have a cognate for “examining magistrate” so I’m no certain our concept of judicial immunity would apply. But America has prosecutorial immunity in most cases as well. I’d assume an examining magistrate – who has both some prosecutorial functions and some judicial functions – would be covered by either or both of those immunities.
April 13, 2010, 11:31 amThales says:
Martinned: Yes, the indicting magistrate is on the left, but according to the Economist the complainants are members of far right organizations with a vested interest in avoiding digging into the past (figuratively and literally).
EvilDave: Treaties between sovereign states (at least) are international law. They can be cited. It’s in your BlueBook, trust me.
TexasLawyer: If you take the Times or Judge Garzon to be asserting that universal jurisdiction applies to all legal matters everywhere, you would be correct. I don’t see either making such an assertion, but rather the more limited case that certain crimes involving massive human rights violations can be prosecuted universally if (and only if) the sovereign with “natural” jurisdiction declines to investigate or prosecute credible allegations. In fact they would be arguably consistent if they supported such position and opposed certain restrictive defamation laws that had the effect of trampling what they no doubt believe to be the universal human right of free expression.
April 13, 2010, 11:34 amOrenWithAnE says:
That works for judges, but what about an Attorney General that continues to investigate matters Congress wants left alone? That’s the essence of what Garzon’s offense entailed — it was as a prosecutor, not a judge.
April 13, 2010, 11:41 amMark Field says:
If Anderson and “Not Anderson” were to meet in the same room, would gamma rays be the result?
April 13, 2010, 11:46 amUrso says:
Well he doesn’t even need to go through the whole impeachment process – if his boss doesn’t like what he’s doing, he can simply be summarily fired.
April 13, 2010, 11:54 amcboldt says:
– That works for judges, but what about an Attorney General that continues to investigate matters Congress wants left alone? –
April 13, 2010, 11:56 amIs the AG a civil officer of the US?
Thales says:
Mark–what’s the result when a person with reasoned, nuanced and informed opinions meets a political hack? Normally I think it’s cancellation of a cable TV show or loud shouting, but there are other possibilities.
April 13, 2010, 11:56 amDjDiverDan says:
Unfortunately, Impeachment of a Federal Judge has never been tried (and I doubt it would be successful) for grounds as mundane (and, unfortunately, as commonplace) as a Judge “willfully exceeding his jurisdiction and willfully ignoring the law”. If only the term used in Article III, “good behavior”, were applied to authorize impeachment under these circumstances, I’d have a few candidates for whom the House ought to consider Articles of Impeachment.
April 13, 2010, 12:00 pmCan't find a good name says:
MartyA: What’s the significance of that placement? Were you expecting the coverage to be higher on the page, or relegated to inside the paper?
April 13, 2010, 12:05 pmbartman says:
Presumably the sexual abuse of children is a crime whereever it happens.
Not if it happens in a Catholic church.
April 13, 2010, 12:06 pmJustin says:
The Pope is likely statutorily immune (at least as an agent or instrumentality of a foreign state for any act it took as an agent or instrumentality) under the FSIA for any civil liability. Head of State immunity (unless the State Department requests otherwise) would likely also bar any civil liability. In addition to civil liability, Head of State Immunity would, amongst other reasons, bar state and local criminal prosecution.
While it is unclear what would happen if the DOJ attempted to criminally prosecute the Pope, I would assume that the DOJ’s prosecutorial discretion would likely take into consideration (amongst other factors) CIL and common law Head of State immunity.
As a result, whether customary international law is binding or not on US courts would be irrelevant as a practical matter to the Pope’s potential civil or criminal liability under US law.
April 13, 2010, 12:07 pmCal says:
Well good, than those who are caterwauling about citations to international law, in America are fools. But we knew that already.
In the Blue Book, there are almost as many ways to cite international law, as domestic law.
April 13, 2010, 12:09 pmNowMDJD says:
What color is this theory? Who can challenge such an amnesty? Isn’t it for the country that issues the amnesty to decide, especially if the amnesty is given by an entity within the country that is legally empowered to grant amnesty, and the amnesty is granted to a citizen of that country for crimes against citizens of the same country? Do citizens of a democratic country such as Spain have the right to rely on amnesty given by their government? Isn’t it evil to withdraw such amnesty? That isn’t to say it was granted in the first place.
No, but it’s for the country (Spain, in this case) to decide whether to pursue that route or not. Spain pursued another course, whcih is within its legitimate power. And the “truth and reconciliation” route involves reconciliation as well as truth. Indictments aren’t reconciliation; truth and reconciliation isn’t what Garzon has been after. So your question is a red herring when applied to the present situation, even if you think the T&R approach is preferable to the unconditional amnesty that apparently had been granted to the ex-Franco officials.
April 13, 2010, 12:11 pmCal says:
Which only goes to show that Garzon touched the third rail in Spanish politics.
April 13, 2010, 12:13 pmzuch says:
There’s a bit more to the story than this. There’s a whole lotta politicking goin’ on here. Those pushing for Garzón’s prosecution are those that stand to be embarrassed at the very least by investigation of Franco regime acts.
As for “amnesty laws”, I would think that any reasonable planet might hold such to be void in cases such as genocide and mass murder. Such are crimes against humanity, and ought to be prosecuted whenever and wherever they occur, no matter the circumstances. The argument is that sometimes, you need such to get the miscreants to step down reasonably peacefully (or at all). To those that maintain this, I would ask: Did you feel that way about Saddam?
Cheers,
April 13, 2010, 12:14 pmJustin says:
To clarify and qualify, the Pope would not be civilly immune under the FSIA for actions that have a specific exception to immunity – waiver, commercial acticity, property rights taken in violation of international law, rights in property, terrorism, arbitration agreement, admiralty (certain exclusions), preferred mortgages (certain exclusions).
The best argument for the nonapplication of the FSIA would be that whatever actions the Pope took were not in its role as an official actor of a foreign state, but instead as an employer of an employee acting in a non-sovereign capacity – this is a murky road that I believe some courts have already attempted to parse through as to the Vatican more generally. See, e.g., Doe v. Holy See, Nos. 06-35563, 06-35587 (9th Cir. Mar. 3, 2009) ; see also O’Bryan v. See, 2009 WL 305342 (6th Cir. Feb. 10, 2009).
April 13, 2010, 12:15 pmzuch says:
Oh, really?!?!? It was they that were out raping little boys and girls? I guess I watch the wrong news channels….
Cheers,
April 13, 2010, 12:17 pmJustin says:
I’d imagine whether Spain’s grant of amnesty was valid as to a Spanish court most likely turns on Spanish law, rather than emotionally-laden policy arguments on either side. Whether such an argument is sustainable or even nonfrivilous would require knowledge of Spanish law that neither I nor, I suspect, anyone commenting on this thread, actually have.
April 13, 2010, 12:18 pmMartinned says:
Yes. I would have gladly supported granting him immunity in return for getting him to step down peacefully. But as far as I can see, such a deal was never in the cards. (In an oil-rich country like Iraq, there is simply too much to steal.)
April 13, 2010, 12:23 pmzuch says:
I think that some bosons are emitted. Lots of those around here.
Cheers,
April 13, 2010, 12:24 pmFat Man says:
Only if it applies to them, may their names be blotted out.
As for Garzon, 20 years late, but a good idea. As for the NYTimes, 2 things they will never give up on:
April 13, 2010, 12:25 pm1. The Spanish Civil War — Socialism or Death is their cry.
2. The Rosenbergs.
Sarcastro says:
Maybe virtual bosons. But The ideological cross-section of scattering of a hack is infinitesimal. No true interaction is possible with such a weak coupling.
April 13, 2010, 12:33 pmzuch says:
But not Dubya (nor Ctheney and the coterie of cheerleaders for “Shock And Awe”). Dubya torpedoed efforts to get him to leave, instead offering a unworkable, flimsy cover counter-”offer” that Saddam must “must leave Iraq within 48 hours”. See here as well. They wanted their little (and sanguinary and useless) war.
Cheers,
April 13, 2010, 12:36 pmzuch says:
That should have been in square brackets. But you have a thread winner here, S!
Cheers,
April 13, 2010, 12:38 pmMartinned says:
Amnesties are a difficult moral issue. Oftentimes, countries get a good deal out of them, but it is still difficult to leave such serious atrocities unpunished. This is what the first commenter in the OJ thread about Garzon wrote:
If this is true, I would consider it highly undesireable. Even an amnesty like Pinochet’s, which was obviously not negotiated at arm’s length, still was an excellent deal for the Chilean people, and one that they would have quite likely agreed to freely if they had been able to. In such a case, I think other jurisdictions should respect the amnesty, too. The only exceptions I’d agree to are violations of (core) ius cogens and amnesties that are simply gifts from the dictator to himself.
April 13, 2010, 12:45 pmUrso says:
zuch, your first link was blocked. Your second link, to the Wolf Blitzer story, I read. It certainly does not speak with nearly as much certainty or authority as you are presenting it. It’s clear that some UAE leader proposed such a solution, but not clear that it was ever approved (or even really discussed) with Saddam, or the US.
Nor does that link say anything about any US leaders’ reaction to the proposal, much less that they “torpedoed” it.
April 13, 2010, 12:50 pmAnonsters says:
What’s all this talk about bosoms? This is a family blog!
April 13, 2010, 12:54 pmMark Field says:
I think you’re giving “Not Anderson” too much credit.
It certainly has been tried.
You’re right, though, that it was unsuccessful. So unsuccessful, in fact, that it was considered illegitimate and has never been tried again.
April 13, 2010, 12:58 pmJMH says:
Completely irrelevant. If some local prosecutor filed charges against you for acts that were explicitly declared non-punishable by your duly constituted government, would you quietly sit on the sidelines waiting for someone else to complain?
Then through your lust for perfect justice you would doom the survivors of genocide and mass murder to generations of continuing death, fear and misery. Whenever something as ugly as the Spanish Civil War happens, there are few angels on either side. Grievances pile up on both sides and as long as whichever side holds the upper hand for hte moment insists on extracting payment for it’s grievances, the violence continues, Hatfield-and-McCoy like, until bitter enemies slaughter each other long after the original issue is moot. Who are you to tell the Spanish people they can’t forgive one another their past crimes in the hope of a peaceful future?
Again, irrelevant since no such law was ever passed regarding Saddam. Or Hitler and the rest of the Nazis for that matter. But if that had been the price for real peace, then so be it. Hirohito was never hanged, and he was head of a government guilty of abominable war crimes in China. So be it.
April 13, 2010, 1:07 pmThales says:
It appears that Garzon is advancing the legal theory that the amnesty is void as in conflict with a law in a superior hierarchy–i.e. what we would call unconstitutional. If he’s being indicted for doing so, I would think that a high burden is on the prosecutor to show that his legal argument is not only unequivocally wrong, but also constitutes “willfully exceeding his jurisdiction and willfully ignoring the law.”
April 13, 2010, 1:50 pmNowMDJD says:
Bosons are mostly emitted when naval vessels pull into port.
April 13, 2010, 2:02 pmBlue says:
Garzon may not be evil, but he is a judicial cancer. There is no place in the world for a two-bit minor hack like him to run around using the apparatus of international law to settle political disputes in whatever country he decides the leaders are against his beliefs. That way lies anarchy–would anyone countenence, for example, a local Texas AG from Houston issuing bench warrants for the arrest of world leaders on such ridiculous grounds? Of course not.
Crimes against humanity are the most serious charges that exist. Raising political disputes–even bloody political disputes such as Chile–to their level is insulting to the memory of those who truly suffered from genocide. Garzon and his ilk trivialize what should never be trivial.
April 13, 2010, 2:06 pmDrGrishka says:
Zuch: In case you were wondering this was precisely the offer Bush made to Saddam. http://www.youtube.com/watch?v=nxdKlIZVDTQ (at 6 minute mark). “Saddam Hussein and his sons must leave Iraq within 48 hours. Their refusal to do so will result in military conflict commenced at a time of our choosing.”
As you can see, Saddam was essentially offered amnesty (he could have gone to Syria or anywhere else that would take him).
I hope that answers your question.
April 13, 2010, 2:07 pmOrenWithAnE says:
I was asking what Congress can do to restrain an AG, not the President.
So Congress can remove him by impeachment but cannot order him not removed by statute? More bizarre things have come to pass I suppose …
April 13, 2010, 2:09 pmAdam J says:
DrGrishka- “‘Saddam Hussein and his sons must leave Iraq within 48 hours. Their refusal to do so will result in military conflict commenced at a time of our choosing.’ As you can see, Saddam was essentially offered amnesty (he could have gone to Syria or anywhere else that would take him).”
Stick to being a doctor, because there’s no way whatsoever that could be construed as an offer of amnesty.
April 13, 2010, 2:11 pmDrGrishka says:
Adam,
I am also a lawyer. But that aside, the issue is not whether this offer was good enough or even very workable. The issue is whether those who wanted to be rid of Saddam supported amnesty in principle. The answer is unequivocal yes. We can dicker about the details of what kind of offer should have been made, and what would have been reasonable, and whether it should have extended to people other than Saddam, etc. But it is not disputable that the US leadership was willing to forego prosecuting Hussein in exchange for peaceful transfer of power.
April 13, 2010, 2:15 pmMartinned says:
Actually, crimes against humanity (as defined in art. 7 of the Rome Statute, for example) are not “the most serious charges that exist”. I think we can all agree, for example, that genocide is worse. Also, if you look at the elements of the crime, there is very little doubt that Pinochet was in fact guilty of crimes against humanity. The only question is whether it is wise, from a policy point of view, to allow universal jurisdiction for this offence.
April 13, 2010, 2:17 pmRandy McDonald says:
Was there any truth and reconciliation in Spain, though? From everything I know, during the transition the Francoists and non-Francoists decided to not talk about anything–that’s quite different form what happened in South Africa.
April 13, 2010, 2:19 pmDrGrishka says:
Randy,
Why is what happened in RSA the only way to go about it? Why is not talking about it, and reconciliating through not mentioning the bad deeds on either side (i.e., “completely turning the page”) any less of a legitimate choice?
April 13, 2010, 2:22 pmFreddy Hill says:
The 1977 amnesty was a political necessity without which the Transición from dictatorship to constitutional monarchy would not have happened. It was a law, but more importantly, it was a pact that insured peace, a peace that millions of Spaniards wanted above all. Of all the people that benefited from amnesty, the one that may have the most to lose today is Santiago Carrillo, a communist politician widely believed to have been responsible for the killing of thousands of right-wing prisoners in what is known as the Paracuellos massacre. He was a member of the Spanish parliament until recently, and is a “respected elder statesman.” Respected by some.
Yes, Garzón has definitely touched the third rail of Spanish politics.
April 13, 2010, 2:27 pmCal says:
Follow-up to Martinned, there is certainly no pass for crimes against humanity because they arise out of a political dispute. That would be absurd.
April 13, 2010, 2:29 pmAdam J says:
JMH – Um, it’d be like a Hatfield-McCoy feud only if the Hatfields won the feud after 3 years, then subjugated and mass murdered a hundred thousand of the McCoys and others in the county for the next 36 years.
April 13, 2010, 2:37 pmDudeman says:
This breaking news just in, Generalissimo Francisco Franco is still dead.
April 13, 2010, 2:44 pmRambler says:
I find it interesting that Pinochet is typically referred to as “the Chilean dictator,” which is perfectly accurate, but that Castro is usually “the Cuban leader” or some other morally neutral term.
April 13, 2010, 2:52 pmBlue says:
Try as I might I do not see how a treaty from 1998 could be used to “prove” that Pinochet was guilty of crimes against humanity. In the grand scheme of things, of course, the only thing Pinochet was really guilty when compared to many other leaders was the unpardonable crime of preventing a left wing socialist autocracy from coming to power.
I also find it amusing that you think “crimes against humanity” are not “the most serious charges that exist.” That flows exactly into my point about trivializing true crimes against humanity.
Finally, you’ll note that the US is no signatory to the supposed “international law” of the Rome Convention. Until my polity has agreed, through its democratic processes, to take on its obligations it has no more impact on my view of what the law truly is than the scribblings of cavemen on the walls of a cliffside.
April 13, 2010, 2:57 pmBlue says:
The issue is the definition of “crimes against humanity.”
April 13, 2010, 2:58 pmJMH says:
Adam J, you just don’t get it do you? You think the only place to bury the hatchet is in the other guys head. I’ll repeat my question: who are you to tell the Spanish people they can’t forgive each other for the past?
April 13, 2010, 3:04 pmChrisTS says:
Ok, I’m confused (surprise). What is the real concern, among us, over this?
I’m assuming no one is a big defender of Pinochet, nor of child molesters [the stupidity of trying to keep the Pope out of England notwithstanding], nor of torturers -outside of fantasy TV shows.
So, some think Garzon overstepped his jurisdiction/anyone’s jurisdiction/desirable limits to international jurisdiction. How does that produce such antipathy to the man?
I admit, I’m really not getting this one.
April 13, 2010, 3:10 pmAbdul Abulbul Amir says:
On wonders at the wisdom or lack thereof in ripping the scab off the wounds caused by the Spanish Civil War. If one side is going to use a judge for payback, it is well to remember that what goes around comes around. Both sides had bad blood on their hands.
If the 1977 law is to be ignored and score settling resumed, then watch out.
April 13, 2010, 3:12 pmChrisTS says:
Really? I would love to see stats on this (honestly). I can only think of hearing “the Cuban dictator” – or, maybe, ‘the Cuban strongman”?
April 13, 2010, 3:12 pmOrenWithAnE says:
Which is relevant to a Spanish prosecution of a Chilean because _________?
April 13, 2010, 3:13 pmBlue says:
The antipathy arises because of what he represents. If Garzon, two-bit hack politician, can somehow get the “international lawfare” apparatus to take him seriously and send him victims than any similarly situated partisan hack–of which there are undoubtedly thousands–can do likewise.
What’s astonishing to me is that the anti-US, leftist crowd hasn’t really thought through this. If this becomes institutionalized how are they going to react when the shoe is on the other foot and a Chavez or a Castro or even an elected official like, say, Zapatero gets arrested and hauled into the dock in Oklahoma to answer to that particular jurisdictions version of what “crimes against humanity” mean–to say nothing of that jurisdiction’s view of rules of evidence, etc.
The veil of sovereignity should be pierced but very rarely and with the greatest degree of trepidation.
April 13, 2010, 3:17 pmBlue says:
Because Garzon and the “international law” crowd want to use Pinochet and cases like him to drastically reduce the sovereignity of all states…and that is a direct attack on the US.
April 13, 2010, 3:19 pmJuan José says:
It´s true that two rightist groups filed criminal complaints against Garzón for “prevaricación”.
These complaints were admitted by Supreme Court Criminal Division (Spanish Law allows prosecution of “public crimes” not only by attorney general, but also by any citizen, injured or not by crime: art. 125 Constitution and 101 Criminal Procedure Act or LECrim).
What about Attorney General (named by Government)? well, he was opposed to Garzón´s investigation about Franco´s crimes and, in fact, National Court closed it after an appeal filed by National Court Attorney (subordinate to Attorney General).
Now, Attorney general is also opposed to Garzón´s indictment, as he believes that opinions and rulings passed by Judge weren´t objectively unsustainable, which is the necessary condition of prevaricación). So, probably only private prosecutions (I think there are two) will ask for a judgement of conviction, while defence and Supreme Court attorney will ask for an acquittal.
One additional point:
Many Spanish jurists critized Garzón´s actuation not because they didn´t want to investigate Franquism, but because Franco and his colleagues died years ago and in Spain itsn´t possible to open a criminal prosecution if responsible for an alleged crime is dead (115 LECRim).
April 13, 2010, 3:26 pmneimoller says:
heh heh. may this comment be placed into record in future threads where ilya somin makes a sadface when he sees the younguns buy che t-shirts and claims that there isnt a corresponding pinochet cult on the right which only worships teh good and teh great (i.e. ronnie).
April 13, 2010, 3:40 pmBlue says:
Saying Pinochet wasn’t guilty of “crimes against humanity” is not the same as saying he was a stand up guy–only that the case against him is largely ideological and that the crimes he supposedly committed should have been dealt with by the state of Chile. Certainly Spain had no reasonable argument that it should try him for anything.
April 13, 2010, 3:47 pmbailey says:
I didn’t see much about worship. Just some facts about why Pinochet, of all the leaders in the world, was so reviled. Kind of like why South Africa had such a pariah status when there were far worse regimes in Africa that were far bloodier.
April 13, 2010, 3:48 pmbailey says:
I didn’t see much about worship. Just some facts about why Pinochet, of all the leaders in the world, was so reviled. Kind of like why South Africa had such a pariah status when there were far worse regimes in Africa that were far bloodier.
April 13, 2010, 3:48 pmChrisTS says:
Wow, just Wow. And, of course, we never decry a person’s crimes if we can think of or point to worse ones.
April 13, 2010, 3:51 pmRambler says:
ChrisTS,
Wow, I mean, just like wow, didn’t you read the phrase “compared to many other leaders”? Please spare us the moral preening.
BTW, I just did a quick search on Google and for laughs did a word search on the search results. “Dictator” only came up twice; in both instances it referred to Fulgencio Batista. Quite funny, really.
So should we be indicting Castro for crimes against humanity, I mean, wow, just wow, he’s done some pretty naughty things. Not unlike other leftist and assorted third-world scumpots who never got the attention of Sr. Garzón.
April 13, 2010, 4:04 pmMark Field says:
Thank God someone has the courage to stand up for Pinochet. Prof. Kerr was worried that nobody would.
April 13, 2010, 4:12 pmOrenWithAnE says:
Isn’t it within the sovereign power of Chile (or Spain) to decide whether to permit this?
Your assertion that the US can tell Spain what prosecutions of its own citizens to permit drastically reduces the sovereignty of all states and is a direct attack on the US.
A decision best left to Spaniards, I think.
April 13, 2010, 4:34 pmBlue says:
Why should Spanish opinion have anuy relevance about a crime purportedly committed in Chile by Chileans? Pinochet was not a subject of Spain, there were no ties to Spain, Chile refused to accept Spain’s claim, and yet Pinochet found himself arrested (in the UK no less).
April 13, 2010, 4:42 pmMichelle Dulak Thomson says:
ChrisTS,
Wow, just Wow. And, of course, we never decry a person’s crimes if we can think of or point to worse ones.
Well, of course not. Tu quoque is entirely dead as a rhetorical technique. As dead as “so’s your old man.”
If you are actually interested in the crimes, as opposed to seeing them as an opportunity to attack someone you oppose on unrelated grounds, then you attack the crimes — wherever and whenever you see them, whoever committed them. It’s fairly simple, really.
From Yes, Prime Minister, offering better political analysis than you can find in most venues now:
Humphrey said he had more bad news about Soames [a candidate for a bishopric]: “He’s also against oppression and persecution in Africa.”
I [PM Hacker] saw no problem with that. “So are we.”
“Yes,” [Humphrey] agreed. “But Soames is against it when practiced by black governments as well as white ones.”
[PM Hacker] “So he’s a racist!”
April 13, 2010, 4:45 pmOrenWithAnE says:
MDK, tu quoque is still acceptable when it refers to the selective application of a particular standard/rule instead of a universal application. That is, where someone accuses a party of a crime but excuses that crime from many similarly-situated other parties, we can infer bad motive on the part of the accuser until he explains the reasoning for his distinction.
April 13, 2010, 4:49 pmThales says:
Blue: Note that the U.S. is a signatory to the Rome Statute. President Bush purported to “unsign” it before it was ratified by the U.S. Senate. This move was essentially unprecedented in modern history, and it isn’t entirely clear what the legal effect of the unsigning was, though the political effect was clearly to antagonize our allies.
But regardless, the U.S. is in fact party to treaties that allow for universal jurisdiction under specified circumstances, including the UN Convention Against Torture.
April 13, 2010, 5:06 pmOrenWithAnE says:
Thales, the US is not a signatory to the Rome Statute, having never been ratified by the US Senate. The President is not empowered to sign things that have not been ratified.
It is not likely that the US Senate will ratify it in the next decade.
April 13, 2010, 5:17 pmThales says:
Incorrect, it is a signatory, meaning one who has signed (President Clinton signed the treaty in 2000). You are correct that it is not a party to the treaty until ratification. I was indicating that the legal effect of withdrawing a signature prior to ratification is unclear.
April 13, 2010, 5:19 pmThales says:
As a side note, to ratify means to approve after the fact; it has always been the case that the President signs treaties and the Senate ratifies them (or declines to, or does not vote).
April 13, 2010, 5:20 pmDawnsblood says:
It seems to me that the question here is a 1970′s era law passed by the Spanish Government closing this matter to the courts. Since Spain is a modern western style democratic state, maybe the best way to handle it is to allow the Spanish people to elect representatives and let those representatives decide whether to repeal that law or not. Franco has been dead for at least 30 years. It’s not like they can put him in jail or anything.
April 13, 2010, 5:21 pmErik S says:
“Even if one thinks what Garzon did was illegal or even unwise, nobody here thinks what he did was evil in any real sense of the word, you would think”
writes a commentator further up…
Nobody thinks it was evil (or appears to be so), but you should at least entertain the thought that it is/was evil, directly or indirectly. To a certain degree, it was/is certainly unjust.
As I wrote some years back, what we are involved with here are the same old double standards of leftists (American or foreign) going berserk over the slightest crime (or misdemeanor) attributed to the right while completely ignoring any crime — or litany of crimes — on the left.
I have more on the politically correct decision on ignoring leftist violence — notably during Spain’s Civil War — on a post on No Pasarán, which also draws up the Rules (sic) that Europe’s Self-Proclaimed Humanitarians Seem to Use When Pursuing Alleged War Criminals
http://no-pasaran.blogspot.com/2010/04/fate-of-baltazar-garzon-gives-peek-into.html
April 13, 2010, 5:23 pmbuck says:
Why is that? Because one appeals to conservatives and the other to liberals? Note that Garzon is by no means “liberal” himself.
Actually… it’s complete BS. Do Dawkins and Hitchen support it? Absolutely. But they are not involved in the action, if there is one. Turn off Fox News and fact-check, for once.
You’re a bit short on international law. Arrest is actually left to individual countries, as ICC has no enforcement mechanism, other than issuing a warrant. And, following the Pinochet (albeit former) and Milosevic precedent, there is some argument as to the immunity of head of state. But this is not all. There is a difference between someone visiting as the head of state and visiting in his private capacity. If Ratzinger wants to visit as head of state, with an official visit, I doubt anyone would touch him. But as a head of 2000 year old religious cult, he is essentially a private citizen and it is in this capacity that he is planning to visit. There are no matters of state to be discussed–he just wants the adoring public to kiss his wrinkled behind.
You really should read the treaties and statutes in question before expertly opining. Genocide has its own entry in international laws now and is quite distinct form Crimes Against Humanity, although the two share some characteristics in common, leaving the prosecutors multiple charging options in cases that might be construed as genocide. The same is true with war crimes, although the difference there is that war crimes, to put simply, are crimes, while Crimes Against Humanity may be coloured under immoral laws. Basically, the CAH statutes make it impossible to legislate around them.
Torture, depending on circumstances, falls either under War Crimes or CAH. It is described separately in the treaties, but, as far as charging capacity is concerned, it’s really a part of the other two. But there is also no question that systematic rape can fall under genocide, if the circumstances are within a narrow scope, or, more generally under CAH. Administrative cover-up for systematic rape is a part of the picture as well. So charging the Pope with CAH for rapes perpetrated on his watch and with his tacit approval–simply because they did not want the negative publicity associated with the discovery–is perfectly reasonable under international laws. So nothing should prevent the UK, should they so choose, from detaining Ratzinger, as a private citizen, for international crimes, then turning him over to ICC with a full list of charges. It may be a futile exercise on the part of the individual lawyers if they do not get the government backing, but it is by no means contrary to international law.
Hey! If the shoe fits… There are more Franco admirers in Spain than Stalin admirers in Russia–although, percentage-wise, he’s probably well behind Mao in China.
Remember why Garzon is being charged. It’s not for choosing to prosecute someone for a crime he did not commit. It is for authorizing an investigation of the perpetration of an unquestionable crime (multiple crimes, in fact). The conservative court attacked him for quite a different reason–he supposedly ignored the amnesty granted in 1975 upon Franco’s death. Yet, there is a work around the amnesty–the amnesty does not relieve those guilty of Crimes Against Humanity. And, because this happened within the country and the victims were citizens, local prosecution can proceed independently from the ICC. (That is, either one of the two would have been sufficient to result in jurisdiction–which is why the prosecution of Pinochet for the execution of Spanish citizens would have been possible in Spain.)
April 13, 2010, 6:08 pmbuck says:
This is probably one of the dumbest comments I have heard on this subject at any time it has every been brought up. We are talking about tens, if not hundreds, of thousands of people summarily executed not just for their political affiliation, but for no fault at all, other than being in the wrong place at the wrong time. And, since when do we have the standard of not prosecuting someone simply because most Stalinists and Maoists were never prosecuted?
April 13, 2010, 6:13 pmChrisTS says:
Sorry if I ruffled your feathers, somehow. I think saying that Pinochet only “was really guilty when compared to many other leaders was the unpardonable crime of preventing a left wing socialist autocracy from coming to power” is Wow worthy.
1) We have the absurd suggestion that one person is not “really guilty” of X because others [leaders] did Y and Y is worse. I would agree that Pinochet’s crimes pale in comparison with Hitler’s. So what? One who murders one person has achieved a lesser wrong than one who murders 2, 3, whatever. How is this relevant to the fact of the first murderer’s guilt for his crime?
2) The comment suggests that what Pinochet did do was not wrong (he is not really guilty of anything). Again, Wow worthy, at least to those of us who think that torture, murder, and terrorization are – like, you know – wrong.
Finally, of course, I apologize for your unrewarding experience on Google.
April 13, 2010, 6:20 pmMichelle Dulak Thomson says:
OrenWithAnE,
MDT, tu quoque is still acceptable when it refers to the selective application of a particular standard/rule instead of a universal application.
I thought the tone was clear enough, but I see now that I should’ve used the sarcasm tags. Sorry.
April 13, 2010, 6:25 pmChrisTS says:
MDK: Well, I got it. :-)
April 13, 2010, 6:30 pmOrenWithAnE says:
If you want to quibble about it, yes, Clinton signed it. Doing so did not make the US a party to the treaty nor did it create any obligation or other legal effect. So the legal effect of withdrawing our signature is to signify that a treaty with no legal effect continues to have no legal effect.
An unquestionable crime who prosecution is absolutely foreclosed by the amnesty. Courts are creations of limited jurisdiction, they cannot just assert the right to hear a matter plainly outside it.
Clever arguments about loopholes might fly on the blawgs but they are considered bad form when the legislature has made clear their unequivocal intent not to revisit Franco’s crimes.
April 13, 2010, 6:31 pmThales says:
“So the legal effect of withdrawing our signature is to signify that a treaty with no legal effect continues to have no legal effect.”
This is not quite clear, probably because it had never happened before–under Article II of the Constitution, the President has the power to make treaties with the advice and consent of (2/3 of) the Senate. So one read is that the President’s inchoate act of making the treaty needs to be consented to or declined by (or at least submitted to) the Senate. As a matter of separation of powers, President Bush arguably infringed on the Senate’s right to consent by preventing them from doing so (as a practical matter they probably would not have ratified without significant changes to the treaty, which were specified conditions under which Clinton signed).
Another read is that until it is ratified, the President has plenary power to sign and un-sign at will; but a hypothetical–what if he signs, then it’s submitted to and is being debated (consistent with “advise”) in the Senate and the same or a new President un-signs? Can the Senate still consent to the original inchoate treaty?
April 13, 2010, 6:40 pmDisplaced Midwesterner says:
“Ok! So I take it that Spain does not have the doctrine of judicial immunity.”
Even in the US, judicial immunity only applies to civil actions, not a criminal prosecution. Sitting judges can be indicted and prosecuted for criminal conduct undertaken in the course of their judicial roles.
April 13, 2010, 6:45 pmOrenWithAnE says:
My reading is that the President and the Senate need to sign and consent to the treaty at the same temporal time or else it is not Law. This is consistent with the meaning of “advise and consent” in the context of Judges and other confirmed positions. This is also consistent with Senate rules that consider a treaty withdrawn if it is not ratified by the end of the Congress.
The contrary reading (leaving aside the absurdity of reading “advise and consent” differently in two places in the same document) would mean that every treaty submitted to the Senate is perpetually “on the docket”. It would be like the current Senate appointing Harriet Miers to the Supreme Court.
April 13, 2010, 6:59 pmThales says:
That can’t be right. There are many unratified treaties pending before the Senate. Under the Vienna Convention (also unratified, but recognized as codifying interpretive principles of customary international law), states that have signed a treaty are not to act so as to undermine it until it has been ratified or rejected by the ratifying body (i.e. unsigning is not contemplated).
What Senate rule are you talking about–does it apply to all treaties?
Harriet Miers withdrew her own nomination. You can’t confirm a person to an office that she has pre-resigned from. A treaty can’t withdraw itself, and the question is whether the President has the authority to do that once it has been signed.
April 13, 2010, 8:48 pmThales says:
Note: Presidents do sometimes withdraw treaties for renegotiation or upon it becoming clear that the Senate will not ratify and sometimes the Senate deems a treaty withdrawn by resolution. The unsigning is unprecedented, and I believe under the Senate’s powers it would be a legislative branch matter whether to recognize it.
http://www.senate.gov/artandhistory/history/common/briefing/Treaties.htm#2
April 13, 2010, 8:59 pmOrenWithAnE says:
(1) The VC is itself unratified and thus of no force. It cannot bind President not to undermine other treaties until it is, itself ratified.
(2) Even if it was, Senate rules specify that failure of the Senate to act on the treaty by the end of Congress effects a rejection. A future Senate may not reconsider until resubmitted by the President.
From rules.senate.gov, the same applies, perforce, to treaties. Either the Senate ratifies them or they are back to square #1 at the end of Congress.
This is quibbling again. A treaty with no force cannot in any way be diminished by ‘unsigning’.
April 13, 2010, 9:40 pmbuck says:
OrenWithAnE: An unquestionable crime who prosecution is absolutely foreclosed by the amnesty. Courts are creations of limited jurisdiction, they cannot just assert the right to hear a matter plainly outside it.
Clever arguments about loopholes might fly on the blawgs but they are considered bad form when the legislature has made clear their unequivocal intent not to revisit Franco’s crimes.
Amnesty was not absolute–just as it was not absolute in South Africa, if you recall. Little knowledge is a dangerous thing. And investigation into the crimes does not mean that anyone would be prosecuted contrary to amnesty. Moreover, legal amnesty for crimes committed offers no guarantee that said crimes would not be exposed and identified with the people who committed them. This is the real fear here, not that some scumbag might get prosecuted nearly 30 years after the last crime was committed. There is also the question of identifying the victims, which remains incomplete. What, pray tell, makes this a criminal offense?
April 13, 2010, 10:49 pmSara says:
What Oren? On it’s face, that rule does not apply to treaties.
Also, Presidents (but usually Secretaries of State) do sign and the US becomes a signatory prior to ratification. Until it is ratified, the US is not bound under domestic law. Under customary International law, the US has an honor obligation not to compromise the agreement, while awaiting ratification but this rule has no teeth (absent war).
Example, Obama went to Prague last week and made the US a signatory to a new arms control treaty with Russia. It has not yet been ratified.
April 13, 2010, 10:49 pmbuck says:
Sorry–the quote feature did not work as promised. The first two paragraphs are Oren’s, the last one is mine.
April 13, 2010, 10:50 pmThales says:
I disagree that it’s as simple as you make it–your argument might be correct in the end (I’m agnostic, but lean toward the separation of powers objection to the purported presidential power to unsign), but consider that there are forceful arguments as to the other position. Also, if you concede that an unratified treaty cannot be diminished by unsigning, doesn’t that mean the Senate could ratify the earlier signed treaty that the President has “ma[d]e” by his signature (if the Senate’s own rules, which the Senate is entitled to change, don’t prohibit such a move)? Also, as I noted, the Vienna Convention on the Law of Treaties codifies existing U.S. and international practice, so even if unratified, it’s the way U.S. courts and custom treat . . . treaties.
See:
April 13, 2010, 10:53 pmhttp://lawreview.wustl.edu/inprint/84-7/Mclaurin.pdf
Thales says:
Also, if Oren is correct, what about a starker case–a peace treaty ending a war. Suppose the President signs in good faith, the Senate (and the ratifying body of the other signatory) go off to consider ratification, and then a new President (or the old one in a bad mood) decides to rip up the treaty–does Oren really think the Senate is powerless to ratify the earlier diplomatic act?
April 13, 2010, 10:55 pmbuck says:
The argument about “unsigning” is stupid. International treaties usually have specific rules for backing out of the signature or for rejecting parts or implications of parts of the treaty. These are always on a clock, although, in some cases, the clock may be reset. For example, a treaty may have an opportunity for a signatory to back out completely within five years or place conditions or exceptions within three years of the signature, then allow another brief back-out period (say, a month) after another 10 years. I do not recall any such conditions on the Rome Treaty. I have not checked in a while, but, unless there is a specific back-out procedure, there is no “unsigning”. There is the equivalent of a pocket veto–the treaty is never ratified–but, of course, this always has a caveat that if there is ever a majority to ratify, there is no backing out.
The consequences may not mean that much to an average neocon from the Bolton school or an isolationist in the Buchanan/Paul mold. Backing out from a ratified treaty can present serious international consequences, but only if you believe in existence of such a thing. No one is going to invade or take your toys away. The consequences are diplomatic and result in suspension of various reciprocal treaties. Basically, if US comes knocking on someone’s door and asks for an extradition, they may be told to go away and STFU. And if US government ever tries to circumvent the normal routes that are no longer available, I would not want to be a government official (especially a former official) who decides to take a vacation abroad.
April 13, 2010, 11:16 pmThales says:
Buck: I’m trying to be charitable about it, but I’m inclined to agree that both under the U.S. Constitution and of course the general way treaties work, whether within their four corners or in canons of interpretation where they are silent, there is no unsigning, only breach or termination in accordance with the treaty’s terms.
But President Bush did indicate an attempt to abrogate President Clinton’s signature, and did so with a Congress generally opposed to the the ICC, so there wasn’t an opportunity to see what would happen if a hostile Congress chose to ratify notwithstanding the purported unsigning.
April 13, 2010, 11:45 pmOrenWithAnE says:
(1) The Rome Treaty is not “pending” in the Senate, nor is the body considering ratifying it. It takes a herculean effort to analogize a situation in which the Senate has utterly rejected a Treaty to one in which the President pulls the plug just as the Senate is taking up the matter.
It might be convenient rhetorically, given the utter contempt that the Senate (even the current Senate, with a Democratic majority that will surely wane by a few seats in Nov) has viewed the Treaty but it’s not relevant. The Senate has, in every possible sense of the word, rejected it.
(2) Even taking the “President pulls the plug just as the Senate is taking it up” scenario seriously (despite it’s inapplicability to the instant case), the Senate has no power to make treaties. The power to make treaties is vested in the president, by and with the consent of the Senate.
(3) On policy grounds, the proposal that Presidents cannot withdraw a treaty from the Senate would amount only to the Senate formally taking a vote rejecting it outright (instead of leaving it in unratified limbo). Surely a future Senate cannot ratify a treaty that the Senate has already voted to reject unless the President has resubmitted it.
(4) Want to guess what the vote would be on the Rome Statute if that were the custom (as opposed to the more polite method of just not voting on it at all)? I’m thinking 3:85 with Feingold, Leahy and Sanders. Boxer, Feinstein, Schumer, Dodd, Burris and a handful of others would abstain.
April 13, 2010, 11:48 pmThales says:
Under #2 and under the ICC case, the question is whether the President can unmake a treaty he (or his predecessor) have already made prior to rejection by the Senate. Different from withdrawing it from consideration in the face of opposition (and not clear the President could even do that if the Senate objected or had different procedural rules for considering a submitted treaty). The Senate never voted on the ICC, so we have not had the test case, though they did pass and consider statutes that were at least partially inconsistent with it.
April 13, 2010, 11:58 pmOrenWithAnE says:
(1) Amnesty generally means immunity from all arms of the law, not just the prosecution.
(2) Amnesty does not guarantee that the crimes cannot be exposed, only that the government may take no part in doing the exposing.
(3) The real fear that lead to amnesty was the realization that the former government would not step down peacefully without it and, as a result, Spain would suffer countless more atrocities. The transition to the current government would not have been possible without it. Spaniards overwhelmingly chose peace instead of justice because they could not achieve both.
Going forward, the fear is that the next time a questionable government thinks about stepping down in favor of a promise of amnesty, they might think twice about whether a future government will be bound by it. If this causes them to chose confrontation and hanging on till the better end instead of peaceful transfer, it will be a great moral tragedy for those involved.
Rules that do not bind the US Senate.
There is a pretty simple back-out procedure — one passes a bill in the Congress declaring that the US is no longer party to the treaty and forbidding the use of any Federal funds towards implementing any part of it.
Of course. Such is life when dealing with sovereign nations. Of course, their refusal will have it’s diplomatic consequences — that’s just the operation of it.
Congress has already foreseen this difficulty and taken appropriate measures.
So your position is that if Bush signed a treaty (including no termination provision) with Israel promising that the US would never enter into the Rome Treaty and the Senate ratified it then a future President/Senate could not, their constitutional powers combined, withdraw from it?
Bonus points if you get that reference :-)
Generally opposed? Really? I don’t think the ICC could get 20 votes in the Senate.
April 14, 2010, 12:03 amOrenWithAnE says:
(1) Like I said, if the Senate knew about your constitutional theory, they would schedule a vote to formally reject it just in case.
(2) Maybe you should read ASPA. It’s not “partially inconsistent” with the Rome Statute, it’s absolutely opposed to it. There’s a section entitled “SEC. 2004. PROHIBITION ON COOPERATION WITH THE INTERNATIONAL CRIMINAL COURT” for crying out loud.
April 14, 2010, 12:07 amRicardo says:
It’s a difficult issue and it’s not clear one side is always going to right. Most dictators seem to hold out the hope that one day history will vindicate them and that even their harshest actions will be viewed as necessary under the circumstances. With the promise of amnesty, some dictators can fantasize about a future where they will be able to jet-set around the world, receiving awards for all the great work they did and with no fear of any personal consequences to themselves for any of their previous actions.
The possibility of amnesty could well encourage dictators to be even more ruthless. I believe Machiavelli advised in the Prince that a new ruler ought to engage in his most brutal repression at the outset — memories are short and so people will forget about it soon enough while at the same time the prince can make sure all his enemies are neutralized. Amnesty under the law gives dictators plenty of reason to follow Machiavelli’s advice.
It should be said that this is an internal matter for Spain, though. If the Spaniards want to lift immunity for Franco’s minions, they ought to be able to do so rather than be bound by a corrupt promise most of them probably had no say in.
April 14, 2010, 2:29 amcboldt says:
– It would be like the current Senate appointing Harriet Miers to the Supreme Court. –
April 14, 2010, 7:42 amThe appointment power is in the hands of the president, not the Senate.
I don’t know that it’s ever happened, but in principle, the president could refuse to appoint a nominee that has obtained senate approval.
From the structure of the constitution, it appears the president has similar [ultimate] power with regard to international treaties. The ratification step is arguably specifically recited in the power to “make” treaties.
cboldt says:
Unlike nominations, treaties are persistent over adjournments and recesses. Further, unlike legislation, treaty proposals are also persistent from one Congress to the next.
Miers could not be granted senate advice and consent, because her nomination was withdrawn; the powers of nomination and appointment being out of the Senate’s hands.
CRS Publication “Senate Consideration of Treaties”
April 14, 2010, 7:57 amcboldt says:
– … the question is whether the President has the authority to do that once it has been signed. –
April 14, 2010, 8:53 amFrom the link you provided @ 8:59 p.m., http://www.senate.gov/artandhistory/history/common/briefing/Treaties.htm#2, the answer is yes. See Jimmy Carter’s withdrawal from a defense treaty with Taiwan.
OrenWithAnE says:
Thanks cboltd, I was unaware that Senate rules parsed advise and consent differently in both instances.
April 14, 2010, 10:47 amcboldt says:
– I was unaware that Senate rules parsed advise and consent differently in both instances. –
April 14, 2010, 11:17 amSenate Rule XXX pertains to treaties, and Rule XXXI pertains to nominations.
On a totally separate subject, I’ve long advocated that breaking the impasse relating to abuse of cloture in the context of executive nominations ought to be handled in Rule XXXI. In executive session handling a treaty, all motions except a motion to postpone indefinitely are decided on a majority basis. So, cloture motions would be handled/passed on a majority basis. In the context of treaties, it’s interesting that it takes 2/3rds of the body to set the treaty decision aside indefinitely, the same number it takes in order to obtain advice and consent.
Adam J says:
JMH – “Adam J, you just don’t get it do you? You think the only place to bury the hatchet is in the other guys head.”
I never said anything about burying a hatchet in any head, and I find it completely ridiculous that you characterize Garzon’s investigation as burying a hatchet yet characterize Franco’s mass murders as a little feud. You’re an apologist for a mass murderer, I get it.
“I’ll repeat my question: who are you to tell the Spanish people they can’t forgive each other for the past?”
I’m not telling anyone whether they should forgive anything, I’m telling you Franco was a despot and mass murderer, not someone caught up in a family feud. You’re the one who seems to think this legal amnesty means the Spanish people have to forgive Franco & his enablers. And I never suggested Garzon should be allowed to use his official powers in contravention of the amnesty law, I simply take issue with your absurd apologism for Franco.
April 14, 2010, 11:28 amMartinned says:
My apologies for unleashing a couple of dozen comments on the ICC and the notion of unsigning a treaty. I thought it was clear that I referred to the Rome Statute not as legally binding anything. I merely used it as the most authoritative current definition of certain crimes. (In this case the crime of crimes against humanity.) If one would want to actually prosecute someone like Pinochet, one would have to find an actual legal basis to do so. Well, maybe. Most human rights treaties, including the ECHR, do have a loophole to cover things like the Nuremberg tribunals:
April 14, 2010, 11:44 amOrenWithAnE says:
Was “crime against humanity” defined sufficiently exactly in 1979 to hold Pinochet to it? I thought this was a modern development …
April 14, 2010, 12:26 pmbuck says:
This is exactly right. Crimes against humanity, war crimes and genocide cannot be covered by a national amnesty. What is pardonable are individual acts, not mass murder. Such investigations are impossible in Russia and China for logistical reasons (and, in the case of China, because this is the last thing that the governing junta wants to see happen). There is no support for such an investigation from either above or below, but if an enterprising prosecutor wanted to dig things up, he could. At least in the case of Russia, such an investigation would find that, except for a large proportion of the dead, no one is innocent. This is the same reason why Germany and Austria never dug too deeply into the past, effectively giving amnesty to all but the most notorious criminals.
Spain is different. The national criminality lasted for over 40 years, although most of the mass murders took place in the 30s and 40s. The country itself has been divided since Napoleonic Wars that took out a major swath of the population, leaving largely the extremes. This is not, incidentally, meant to defend the “liberals”. Spanish Left has been vehemently antagonistic to the Catholic Church since the formation of the Liberales in 1812. This has largely been justified by the Church’s opposition to liberal policies (where “liberal” used to mean something entirely different from what it means to American conservatives today) and support for the Royalist party. As such, the Left has been responsible for considerable atrocities aimed at the clergy. But even during the Civil War, most of the ire of the Left was aimed at the actual militants and instigators (despite the fact that the Left had been supported by Stalin, who was ostensibly their only formal ally). The numbers of victims from the Left terror and the Right terror are incomparable. The scale of the Frankist and falangist executions rivaled those of Nazi Germany and Stalinist NKVD.
It has been stated on this list when this topic came up previously that no one in his right mind would launch an argument in defense of either the Pinochet or Franco regimes per se, but this did not mean that there should be prosecutions. Anyone who had made that claim in the past should shudder now, seeing the kind of idiocy posted here already.
Crimes, especially crimes against humanity, are not relative. There is no legal defense, “I am not guilty because his crime is worse than mine.” One has to wonder why such arguments are always made from the Right. The Left, on the other hand, often argues that the crimes of which various Leftists regimes have been accused are “justifiable”. Neither claim makes much sense, but you certainly can’t bring the first one into court.
As for Spanish amnesty, international crimes are specifically excluded because of international law. And international law does recognize crimes committed within one’s own country against its population–although this was not the case until fairly recently. In fact, under international law, although genocide does not include the category of victims that can be identified as political opposition, similar crimes fall squarely under the Crimes Against Humanity label. And, because some of this conduct occurred during what has been identified as the Civil War, i.e., a period of combat, crimes against civilian population can easily be targeted as War Crimes. Both categories are outside the amnesty.
April 14, 2010, 1:05 pmMartinned says:
Probably not. But the claim I tried to refute yesterday was that “political disputes” like those Pinochet had with Allende do not rise to the level of crimes against humanities in the colloqial sense, i.e. crimes serious enough to warrant extraordinary measures like universal jurisdiction. Instead, Blue argued, Pinochet’s alleged crimes are “trivial” compared to the really big crimes that are out there. I sought to refute that claim firstly by reminding Blue that in modern legal parlance with the definitions of today (as evidenced by the Rome Statute), we have a specific definition for “crimes against humanity”, which causes it to be ranked below genocide in the hierarchy of seriousness. Secondly, I sought to argue that there is nothing very “trivial” about Pinochet’s alleged crimes, since they are quite clearly well within the remit of the ICC (and deservedly so).
Whether it was right to prosecute Pinochet is a different story. On policy grounds, I’d be inclined to say no. Whether it was lawful to prosecute Pinochet is a matter of Spanish law that I am not equipped to answer. However, neither of those questions was the point of my comment.
Here’s what Blue wrote:
April 14, 2010, 1:11 pmThales says:
cboldt says (quoting me):
“– … the question is whether the President has the authority to do that once it has been signed. –
From the link you provided @ 8:59 p.m., http://www.senate.gov/artandhistory/history/common/briefing/Treaties.htm#2, the answer is yes. See Jimmy Carter’s withdrawal from a defense treaty with Taiwan.”
Subtly different. Carter terminated the Taiwan treaty, which had been ratified, in accordance with its terms (and Sen. Goldwater and others challenged his right to do so unilaterally without a statutory act abrogating the treaty, the merits of which challenge were not reached by the Supreme Court). The ICC/Bush issue does not deal with termination or withdrawal in any conventional sense, but with the President’s/Presidency’s ability to change direction after acting to make a treaty, while the treaty is inchoate. Withdrawing a *signed* treaty from consideration (again, if and as permitted by Senate rules) is not such an act.
April 14, 2010, 1:14 pmbuck says:
Crimes Against Humanity have been vaguely identified since 1915, but became a formal category of crimes during the Nuremberg trials. They have been covered by a number of treaties for some time. The Rome document simply assembles them all under the same roof and gives a new path to jurisdiction, but it is absurd to suggest that the category is “a modern development”.
Good point, but this was a bilateral treaty. It is generally much easier to withdraw from a bilateral treaty without adverse consequences (except, of course, for the relations with the other side). A multi-lateral treaty has different rules and mechanisms.
Oren, if you think your smug comment makes any sense, you are wrong. I did not say that the treaty must be enforced internally by the laws of the country that aims to “unsign” it. It is very easy to claim “unsigning”, but it does not absolve the country of its international legal responsibility. No one could care less what the Senate wants to do internally–that concerns ratification, not signing or unsigning. Signing a treaty is an international procedure, ratification is national. Only the President can sign (or someone authorized to do so from the Executive branch). Congress has no say in it. And the rules governing signing or unsigning are international in nature, not national. If a treaty has no unsigning procedure, no shoe pounding in the world is going to get the treaty “unsigned”. It may remain unratified indefinitely, but that’s not the same thing. You seem to believe that internal governing instruments, especially those of the Legislative branch, have far more power internationally than they really do.
April 14, 2010, 1:29 pmbuck says:
Better keep your mouth shut and be thought a fool than open it and remove all doubt. You’ve been posting smug comments that are almost entirely based on false premises (or unwarranted suppositions) so no amount of logic built on them can salvage them.
If you want to sound knowledgeable, go read a book–or, at least, the treaties and laws in question. Until your erudition improves, I see no point responding to your comments any further (unless others may be confused by them).
April 14, 2010, 1:38 pmOrenWithAnE says:
Martinned, your 1:11 pm seems precisely right.
He can enter into treaties by and with the consent of the Senate.
And you seem to think that internal governing instruments must give weight to international legal norms, which they most certainly do not. The US government operates based on our obligations under the Constitution and the legislation and treaties that are duly passed under it. Nothing more, nothing less.
I reiterate the question that requires no logic nor premise, please estimate the vote in the United States Senate if the Rome Statute on the ICC were given an up or down vote. If you want a hint, ASPA passed the Senate 92-7. I think it’s fair to say that no Senator that voted for ASPA would vote to ratify (save for major amendments that
I will confess to being smug, only because a few other posters (not you, actually), seem entirely oblivious to the fact that the US Senate has utterly rejected the Rome Statute and, in fact, has gone so far as to bar the Executive from any cooperation with the ICC.
I have read the Rome Statute and the ASPA. Have you read the Senate roll call on ASPA?
April 14, 2010, 11:43 pmPetB says:
IT may be a bit more complicated: amnesty – as I understand it – means unability of the state to prosecute anybody for amnested deeds, but may not mean prohibition of investigation.
April 15, 2010, 7:13 am