Onetime VC contributor Eric Posner has a WSJ op-ed on the indictment of Judge Baltasar Garzón in Spain and what this episode should teach us about the efforts to assert universal jurisdiction over alleged atrocities that occurred within the sovereignty of other nations. Here’s a taste:
Universal jurisdiction arose centuries ago to give states a means for fighting pirates. In recent years, idealistic lawyers have tried to convert it into an all-purpose instrument for promoting international justice. But supporters of this law turned a blind eye to the diverse and often incompatible notions of justice that exist across countries. Everyone can agree to condemn arbitrary detention, for example, but in practice people disagree about what the term means. Whether an amnesty should be issued so that a transition can be made to democracy (as in Chile or as in Spain), or exceptions to some rules should be made for the sake of national security are not questions for a foreign judge.
When Mr. Garzon indicted Pinochet, riots erupted in Chile. No matter, thundered the champions of international law: Let justice be done though the heavens fall. But when Mr. Garzon turned his sights on his own country, the gates of justice slammed shut. Spain’s establishment was not willing to risk unraveling its own transition to democracy, and rightly so. But then on what grounds should Spanish courts pass judgment on Chile?
Posner also explains why creation of the International Criminal Court cannot cure the problems with efforts by national judges to declare universal jurisdiction over acts that occurred within other nations. The ICC, Posner says, is an “inconsequential institution” that must make “inherently political” decisions about which cases to pursue, and which will be “squashed like a bug” if it ever goes after a powerful country.
One cannot solve the perennial problem of “who will guard the guardians” by handing over authority to prosecutors and courts. But that is what the universal jurisdiction agenda boils down to. Mr. Garzon’s comeuppance should be a warning to those who place their faith in the ICC to right the world’s wrongs.
UPDATE: Kevin Jon Heller responds at Opinio Juris.
Crunchy Frog says:
Posner makes more sense in this op-ed than he ever did posting at the VC.
April 14, 2010, 1:00 pmDilan Esper says:
The problem with Posner’s argument is what, then, do you do about the pirates? Or perpetrators of genocide? Or torturers?
The problem is that some people really should be treated as hostis humanae generis, and the fact that there are disagreements as to exactly who falls in that category doesn’t mean the category doesn’t exist.
Indeed, you can argue that the entire process that has played out in Spain is exactly the process that should play out. Obviously, defenders of evil dictators like Franco and Pinochet will push back. They may riot. Sometimes the push back will work, just as the powerful sometimes get away with things in any legal arena. (See, e.g., Emperor Hirohito, the Sultan of Brunei, Pope Benedict XVI, OJ Simpson (the first time around), etc.)
But when the push back fails, sometimes you get justice. Pinochet, for instance, really shouldn’t have been able to get away scot free with what his goons did in that soccer stadium or on the streets of Washington, D.C. And sometimes you have to put up with a few riots in order to do the right thing. Such is the legal process– sometimes messy, often unequal, but sometimes achieving a semblance of justice.
April 14, 2010, 1:17 pmOrenWithAnE says:
Was this ever the purpose of the ICC? If you believe the proponents of the Rome Treaty, it was never intended to be applied to powerful country. They insisted that US fears that it would be applied against us were unfounded paranoia and that the purpose was to apply law only to the lawless (aka weak) parts of the world ruled by warlords and tyrants.
In this role, I think the ICC could be consequential as a way of setting a uniform procedure for meting out justice to those lawless areas. To this end, the drafters should have accepted Clinton’s suggested revisions and I think the US would be glad to be on board with that mission.
[ It remains to be seen if ICC-proponent promises that they would never turn their sights on the first world were sincere or, as the right sometimes claims, a ruse to get the US on board before turning it against us (and Israel). Certainly their refusal agree to Clinton's suggestions supports this theory. ]
April 14, 2010, 1:33 pmMoneyrunner says:
Dilan, you may get more agreement on that if those brave defenders of truth and justice like Judge Garzon indicted evil dictators like Fidel Castro or Robert Mugabe. Under those conditions you may get people from various parts of the political spectrum agreeing that this is a role that fills a need. But for some reason, help me with this because I don’t quite understand (sarcasm intended) the quarry of Judge Garzon always occupies one end of the political spectrum. Forgive me if I then begin to believe that we have a man on a witch hunt who only finds witches where he wants to; in other words a political trial rather than a search for justice.
April 14, 2010, 1:33 pmDilan Esper says:
It remains to be seen if ICC-proponent promises that they would never turn their sights on the first world were sincere or, as the right sometimes claims, a ruse to get the US on board before turning it against us (and Israel). Certainly their refusal agree to Clinton’s suggestions supports this theory.
I would think about this issue differently. The reason you don’t generally want to let the ICC loose on powerful democratic countries is because such countries have legal mechanisms for redress against governmental abuses. You don’t need international bodies, for instance, to deal with US prison conditions because prisoners can sue and get redress for violations of the Eighth Amendment.
But imagine if we elected a Hitler (a real one– not the metaphorical one that shows up in comments threads). Our Hitler suspended the Constitution, dismantled the Congress and the courts, and started rounding people up and putting them in concentration camps and death camps.
Now, if this American Hitler later found himself within the jurisdiction of an international criminal tribunal, would people find this objectionable simply because he is American?
In other words, the issue isn’t “would the ICC ever apply to Americans?” but “would the ICC ever apply to countries with due process and functioning accountable legal systems?”. And the answer to the SECOND question ought to be “no”.
April 14, 2010, 1:38 pmHouston Lawyer says:
The more likely result of these types of cases is that dictators will cling on until they die. In addition, these courts are very selective in whom they pursue. I don’t recall any of the leaders of formerly communist countries being subject to this type of persecution. In addition, Arafat didn’t appear to have any restrictions on his travel because of roving prosecutions. These courts don’t seem to be seeking justice, but revenge, which everyone knows is a dish best served cold.
April 14, 2010, 1:39 pmMark Field says:
One of the annoying features of rhetorical questions is the pretense that there’s no good answer. In this case, though, proponents of universal jurisdiction have 2 answers:
1. The circumstances of the amnesty may be such that it was essentially self-granted. There’s no reason to respect such grants.
2. The costs and benefits of the amnesty aren’t the same in Spain as they are in Chile (speaking now of the Chilean amnesty). Thus, there’s no reason Spanish courts should weigh the actions the same way. And as Dilan notes (and as Elie Weisel would agree), some people do such horrific things that we need a forum for justice.
Use of a rhetorical device allowed Posner to duck these problems.
A good example of the soft tyranny of low expectations.
April 14, 2010, 1:39 pmDilan Esper says:
Dilan, you may get more agreement on that if those brave defenders of truth and justice like Judge Garzon indicted evil dictators like Fidel Castro or Robert Mugabe.
This is an illegitimate move. It is not a defense to criminal conduct to say that someone else did the same thing.
April 14, 2010, 1:39 pmDilan Esper says:
I don’t recall any of the leaders of formerly communist countries being subject to this type of persecution.
Well, the leader of Communist Romania didn’t live out his life in comfort, as I recall.
April 14, 2010, 1:40 pmOrenWithAnE says:
One does not have to be a “defender” of Franco to realize that without a credible and enforceable amnesty, the transition to democratic government could not have taken place (that is, the military would not have surrendered power peacefully). This would have led to more atrocities and more blood.
The only thing I am defending is the right of the Spanish people to make a deal in which they trade justice for past crime for a more peaceful future. This was the crux of the Transición.
Oftentimes you cannot achieve any justice without a very steep price. It is rational for the Spaniards to want to simply end the conflict instead of pursuing retaliation for past acts.
Even if it isn’t rational, it’s their choice as a nation to do forgive and move on.
April 14, 2010, 1:40 pmPLR says:
Some of us do not distinguish between classes of criminals based on a single prosecutor’s determination to pursue fewer than all of them.
April 14, 2010, 1:44 pmDilan Esper says:
Oren:
I don’t deny that amnesty has its uses. But it’s basically a political fight. If the Francoists win, you can certainly argue this result would maintain Spain’s allegedly fragile democratic status.
If the Francoists lose, you can argue that the Spanish political system was finally ready to confront the crimes of the prior regime.
In other words, both the search for universal jurisdiction and the pushback are inevitable, and there’s no particular reason to despair simply because the pushback sometimes fails.
April 14, 2010, 1:44 pmBlue says:
I’m sure you would also then support a prosecutor who only indicted black people for crimes. After all, the distribution of his targets is no defense!
April 14, 2010, 1:46 pmDilan Esper says:
Blue:
If you wanted to attack the prosecutor for selective prosecution, fine. But the solution to that problem would not be to stop prosecuting any black criminals, which seems to be the solution being advocated here (stop prosecuting any right-wing dictators!).
April 14, 2010, 1:50 pmBlue says:
The point, Dilan, is that the prosecutor is not fit for the office and shouldn’t be given power to make the selective prosecutions in the first case. When a two-bit hack like Garzon can do what he did it makes a mockery of the very notion of “international law.”
April 14, 2010, 1:53 pmAnonsters says:
I’ve long maintained that there’s a reliable coterie of fascist commentators hanging around VC. And now we have people apologizing for Franco. Color me shocked.
By the way, am I the only one who finds the conservative crowd’s crowing over Garzon’s indictment distasteful? It’s one thing to say, “This illustrates blah blah blah.” It’s quite another to do it in the way that has been done by certain people lately: “HA! That’ll show him!”
April 14, 2010, 1:54 pmOrenWithAnE says:
And the yet the Rome Statute curiously still provides for the suspension of judgments of an American court at their discretion.
Ought to be, yes.
April 14, 2010, 1:54 pmPer Son says:
Is it true that Garzon only brought indictments down on rightwing folk?
I heard otherwise. I also heard that he is no friend of the Basques.
April 14, 2010, 1:55 pmOrenWithAnE says:
Contrary to their previous promise not to do so. You will excuse me if I don’t think reneging on this crucial element of the transition agreement is at all noble.
Essentially, it paints the democratic wing as being the the people that will promise anything to get power but will not abide their word once they are firmly in the government.
April 14, 2010, 1:56 pmDilan Esper says:
The point, Dilan, is that the prosecutor is not fit for the office and shouldn’t be given power to make the selective prosecutions in the first case. When a two-bit hack like Garzon can do what he did it makes a mockery of the very notion of “international law.”
That’s not really a point. If Garzon’s problem is selective prosecution, then fine, get rid of him and replace him with someone who goes after both right-wing and left-wing dictators. Or instruct him to go after both.
But selective prosecution, while bad, hardly “makes a mockery of the very notion of ‘international law’”, at least in the sense you mean it, any more than the fact that there are selective prosecutors in the American legal system establishes that the system should be dismantled.
The argument that conservatives are getting the shaft and that this constitutes liberal hypocrisy is an argument that conservatives love to make, but it doesn’t do the work that you want it to do. Rather, it’s an argument that supports MORE transborder prosecutions of dictators, not less.
April 14, 2010, 1:57 pmDilan Esper says:
Contrary to their previous promise not to do so. You will excuse me if I don’t think reneging on this crucial element of the transition is at all noble.
Why? Happens all the time. This was an amnesty, not a plea bargain. The only real question is whether it will cause more trouble than it is worth.
If the Japanese people as a whole had decided 10 years down the line that the royal family was overrated and that they were fine with putting Hirohito in the dock, I hardly think it would have been a terrible outcome even if some royalist Japanese might have rioted in the streets of Tokyo over it.
April 14, 2010, 2:00 pmDerHahn says:
Dilan Esper says:
The problem with Posner’s argument is what, then, do you do about the pirates? Or perpetrators of genocide? Or torturers?
Lets play a game of ‘One of these things is not like the others’. Can anybody think of a distinguishing feature that might make pirates different from perpetrators of genocide or torturers? Like, maybe, universal jurisdiction is needed to combat them because they usually don’t commit crimes with in the territorial bounds of a nation?
April 14, 2010, 2:01 pmLongCat says:
Why is Spain so much better situated to weigh the costs and benefits than Chile? If Chile doesn’t act, it has decided the costs outweigh the benefits. I’d be more likely to trust Chile on that question than a country thousands of miles away that doesn’t have to live with any of the fallout.
As I recall, domestic (not universal) jurisdiction led to that discomfort.
April 14, 2010, 2:02 pmBored Lawyer says:
What misdirection! The question here is not whether an individual is or is not guilty. The question here is whether the ICC or some other exercise of “universal jurisdiction” is legitimate.
To have legitimacy, “law” must be neutral and apply equally to all. That does not mean that a law is illegitimate because sometimes criminals escape for one reason or another. But it does mean that if a law is consistently applied to only one subset of persons, based on political or other extraneous considerations (extraneous, meaning other than whether the person committed the crime), then it ceases to be an exercise in “law” and becomes one of politics.
Muammar Khaddaffi need never fear being held on charges of committing “war crimes” or “crimes against humanity,” whereas Tsippi Livni, the head of the Israeli opposition (and formerly Israeli Foreign Minister) did. That illustrates that what is happening is an exercise in politics, not law.
April 14, 2010, 2:03 pmNorthern Dave says:
So far the posts have missed what to me seems the main flaw in the whole “international law” business of the ICC. That is that the function of Courts is to interpret the laws of the Governing Body. There is no World Government. The ICC is self-appointed and self-annointed and therefore, legally speaking, an oxymoron.
April 14, 2010, 2:07 pmDilan Esper says:
Can anybody think of a distinguishing feature that might make pirates different from perpetrators of genocide or torturers? Like, maybe, universal jurisdiction is needed to combat them because they usually don’t commit crimes with in the territorial bounds of a nation?
Actually, pirates sometimes do and torturers and genocidaires sometimes don’t.
April 14, 2010, 2:09 pmDilan Esper says:
To have legitimacy, “law” must be neutral and apply equally to all.
This standard would indict the Nuremburg Trials. Indeed, if you applied it strictly enough, it would indict every domestic legal system in the world.
Law SHOULD be neutral and apply equally to all. In practice, it doesn’t, but that doesn’t necessarily make its application in particular cases unjust.
April 14, 2010, 2:10 pmPLR says:
The countries who signed the Convention Against Torture apparently decided that one thing is much like the other.
April 14, 2010, 2:11 pmNorthern Dave says:
DE wrote:
“But selective prosecution, while bad, hardly “makes a mockery of the very notion of ‘international law’”, ”
It does when it is consistently applied only in one direction by the entire body. It makes a mockery of the whole ideal and reveals it to be simply another tyrannical and oppressive political tool (which ought to be demolished for the travesty it is sooner rather than later).
April 14, 2010, 2:11 pmNorthern Dave says:
DE from earlier:
“The reason you don’t generally want to let the ICC loose on powerful democratic countries is because such countries have legal mechanisms for redress against governmental abuses. ”
Ah yes, the famous appeal to Beijing for redress…………
April 14, 2010, 2:15 pmAbdul Abulbul Amir says:
Do mean others should have to put up with riots or worse so you can feel morally superior? How many killed or maimed others are you willing to see in order for Pinochet to face the music? Would you be willing to be one of those others?
April 14, 2010, 2:16 pmOrenWithAnE says:
This is dishonorable to the point of absurdity, then. No government would ever accept an amnesty that means “we will not prosecute except if we decide otherwise”. To reduce it to that is to make it entirely devoid of any real semantic content.
A deal is a deal is a deal. Hirohito would be well within his rights to insist on performance of the deal.
April 14, 2010, 2:17 pmDilan Esper says:
t does when it is consistently applied only in one direction by the entire body. It makes a mockery of the whole ideal and reveals it to be simply another tyrannical and oppressive political tool (which ought to be demolished for the travesty it is sooner rather than later).
This isn’t an argument. It’s just a bunch of lofty words strung together.
Let’s be pragmatic about selective prosecution. You have a jurisdiction that selectively prosecutes criminals. Is the solution to that problem: (1) let all the criminals free, or (2) start prosecuting all the criminals rather than prosecuting selectively?
Note that the answer to that question does not change simply because you express a lot of outrage about selective prosecution and how it undermines the legal system and is a travesty of justice.
April 14, 2010, 2:19 pmDilan Esper says:
Do mean others should have to put up with riots or worse so you can feel morally superior?
I mean that political decisions unpopular with a segment of the community sometimes result in riots, which in no way establishes that they were incorrect.
April 14, 2010, 2:21 pmChrisTS says:
As Martinned pointed out in the previous thread, Garzon investigated the GAL case[s] in which the socialist President was implicated.
April 14, 2010, 2:22 pmquasimodo says:
Anonsters said:
Apparently, English is not your first language. Not one commenter has been an apologist for Franco.
I could make a a lot of money selling straw to leftists.
April 14, 2010, 2:23 pmDilan Esper says:
A deal is a deal is a deal. Hirohito would be well within his rights to insist on performance of the deal.
Amnesty isn’t a contract. Dictators take these “deals” because the alternative is that they may end up strung up to a lamppost. But they very much know that it is entirely up to the grace of the next government that they continue to live comfortably. If perspectives change, they take the risk. And if they didn’t want to run that risk, they should have thought of that before ordering torture and murder.
April 14, 2010, 2:24 pmnot my leg says:
As skeptical as I am about universal jurisdiction, Posner does seem to have committed a logical fallacy here.
People have incompatible views on what constitutes a crime that should be subject to universal jurisdiction.
Therefore no crimes should be subject to universal jurisdiction.
This is exactly the category problem identified by Dilan. You cannot negate the existence of a category by raising disputes about what it contains. If Posner wants to claim there are no crimes that should be subject to universal jurisdiction then he should make that claim, rather than simply raising a difficulty in definition. If his claim instead is that we cannot build a workable system of universal jurisdiction, then he should make that more limited (and perhaps more defensible) claim.
I realize that some people may respond by saying that Posner would not completely eliminate universal jurisdiction, and would retain it for piracy and like crimes. That is fine, but it doesn’t address the issue. The fact that some aspects are disputed does not mean that only the undisputed aspects are part of the category. If he wants to argue that the category excludes torture and genocide, then he should argue that.
April 14, 2010, 2:24 pmwm13 says:
You must have studied a different Constitutional Law than the one I studied. Yick Wo’s conviction was overturned, no? Notwithstanding that he did in fact operate a laundry in a wooden building.
April 14, 2010, 2:25 pmBored Lawyer says:
I don’t see why the Nuremburg trials are called into question. Was there some other genocidal government that was being let off scot-free at the time?
And your second sentence is disingenuous. No justice system is perfect; sometimes people escape justice for one reason or another, such as lack of evidence, fleeing the jurisdiction, or simply charming the jury. That does not mean that the law is not applied equally to all. OJ Simpson got away with murder (or so many believe), but no one in California or the U.S. thinks they are immune from prosecution if they commit that crime, even if they are a celebrity. Everyone understands, IOW, that the criminal prohibition of murder is the law of the land, and all are subject to it.
But in the case of “international law,” there is a distinct group who know they are immune from ever being pursued for their “crimes.” I notice you did not dispute my assertion that the head of state of Libya has no fear of such prosecution, while a high-level Israeli official does. That tells you that what you are dealing with is not “law” in any meaningful sense of the term.
April 14, 2010, 2:26 pmDilan Esper says:
You must have studied a different Constitutional Law than the one I studied. Yick Wo’s conviction was overturned, no?
Sure, but the Court’s intention was not that selective prosecution continue and that every Asian criminal’s conviction get overturned, any more than the Court’s intention in Mapp v. Ohio was that illegal searches continue and that everyone’s convictions get overturned for that reason.
These cases are supposed to spur governments to do the right thing and continue prosecuting.
April 14, 2010, 2:29 pmDilan Esper says:
I don’t see why the Nuremburg trials are called into question. Was there some other genocidal government that was being let off scot-free at the time?
Um, yes. Indeed, I believe they had representatives on the tribunal.
April 14, 2010, 2:30 pmAnderson says:
The problem with Posner’s argument is what, then, do you do about the pirates? Or perpetrators of genocide? Or torturers?
That’s not a problem, it’s a feature. In Posner’s eyes.
if those brave defenders of truth and justice like Judge Garzon indicted evil dictators like Fidel Castro or Robert Mugabe
Indicting tyrants who flout the rule of law is exactly the exercise in vanity that Garzon’s critics accuse him of. Whereas, in theory at least, the United States should at least be a bit ashamed, should its officers and officials be convicted of torture in a fair proceeding.
It’s a bit like the exaggerated focus of some groups on Israel’s misconduct as opposed to that of, say, Syria. Those critics are at least paying Israel the compliment of supposing that Israel might listen.
April 14, 2010, 2:38 pmsgerber says:
Um, yes. Indeed, I believe they had representatives on the tribunal.
Ohmygod, Paul Krugman’s stylistic tics are metastasizing.
April 14, 2010, 2:42 pmwm13 says:
Actually, I think the Court’s intention was that pretextual prosecutions for operating laundries in wooden buildings should cease. In any case, the Court certainly didn’t say, “Let these Chinese rot in jail; they are unquestionably guilty. But hey, going forward, maybe you could prosecute some white people too, just to make it fairer.” Which seems to be Mr. Esper’s response to complaints of politically motivated prosecutions under the rubric of “universal jurisdiction.”
April 14, 2010, 2:44 pmDavid M. Nieporent says:
I don’t understand your distinction between an amnesty and a plea bargain, for the purpose of discussing reneging on prior commitments. Would you find it reasonable if Reagan had gone around prosecuting draft dodgers after Carter had granted them amnesty? An amnesty isn’t a mere statement of intention not to prosecute; it’s a commitment.
April 14, 2010, 2:44 pmOrenWithAnE says:
And reformers take the deal because the alternative for them is a firing squad (if they are lucky).
The position that dictators will be given no quarter can lead only the the absolute refusal of dictators to give up power under any circumstances whatsoever. Perhaps they can be removed and hung from a lamppost at steep cost in blood, but that’s no bargain and it makes perfect game-theoretic sense for him to fight to the bitter end. You have removed the incentive for a peaceful transition and so, logically, you will get considerably fewer peaceful transitions.
In the sane world, it makes sense to give the dictator an ‘out’ to avoid the bloodshed of civil war. Sure it’s not just that he gets away with his crimes but neither is it just to subject an entire country to potentially interminable a bloody conflict just to satisfy the desire to hold him accountable.
April 14, 2010, 2:45 pmSoronel Haetir says:
No, but power is still power. And at the international level power is all that really matters. If you have the power to get away with something it is legitimate whether others like it or not.
April 14, 2010, 2:46 pmDilan Esper says:
Actually, I think the Court’s intention was that pretextual prosecutions for operating laundries in wooden buildings should cease. In any case, the Court certainly didn’t say, “Let these Chinese rot in jail; they are unquestionably guilty. But hey, going forward, maybe you could prosecute some white people too, just to make it fairer.”
Of course, the difference in the example you are giving is you are talking about innocent people.
Franco and Pinochet, of course, were guilty as sin.
April 14, 2010, 2:47 pmDilan Esper says:
I don’t understand your distinction between an amnesty and a plea bargain, for the purpose of discussing reneging on prior commitments.
A plea bargain involves the judicial process which turns it into a binding legal act (and can be rejected by the courts if they decide that it is an affront to the judicial process).
An amnesty is simply a promise not to prosecute. That doesn’t bind a court.
April 14, 2010, 2:48 pmDilan Esper says:
The position that dictators will be given no quarter can lead only the the absolute refusal of dictators to give up power under any circumstances whatsoever. Perhaps they can be removed and hung from a lamppost at steep cost in blood, but that’s no bargain and it makes perfect game-theoretic sense for him to fight to the bitter end.
Well, in practice dictators sometimes hang on to the bitter end and sometimes don’t, despite that amnesties are sometimes later violated and dictators sometimes are strung up on lampposts.
Which suggests that the incentives are not as cut and dried as you seem to think.
April 14, 2010, 2:50 pmOrenWithAnE says:
I think Mr. Garzon is finding that it does bind him, actually.
Of course the incentives are not simple and dictators are not the most rational actors but the fundamentals of the deal remains: a commitment not to prosecute in exchange for peaceful surrender of government power. That’s a damn good deal, if you ask me. Apparently the Spaniards agree.
April 14, 2010, 2:59 pmBob White says:
The valid criticism of Nuremberg, IMO, is that they weren’t presented as simply part of a time-honored tradition of victor’s justice, but rather as a prosecution of crimes against humanity that were not part of an existing legal regime to which the defendants knew they would be subject. This is why you see the Conventions against Genocide and Torture coming shortly after Nuremberg-if you have need for another similar international trial, you can rely on those rather than another court of victor’s justice with a paper-thin veneer.
Mind you, I’m not arguing that most, if not all, of the people at Nuremberg shouldn’t have been punished, merely that the publicized reason they were punished should have been much closer to the real reason they were punished: they were on the losing side and did things the victors didn’t like.
April 14, 2010, 3:00 pmMartinned says:
In the 1990s, he went after the GAL death squads that were organised by the PSOE (socialist) governments of the 1980s to push back against the ETA. Nobody knew (and knows) exactly how deep the connections between these death squads and the government ran, so this was quite an interesting move for a card carrying PSOE member.
April 14, 2010, 3:01 pmPLR says:
“Genocide” in its literal sense, kemo sabe.
April 14, 2010, 3:01 pmEvan says:
But did they have the right to make the deal? Technically, yes, the government does have the right to issue a pardon or to decline to prosecute. However, I believe Judge Garzon et al are arguing that, morally, no one has the right to issue a pardon for genocide under duress. (“Issue this pardon or I’ll keep being a genocidal tyrant!”)
No, Yick Wu was guilty. The Supreme Court gave a very interesting decision there: he’s guilty, but he’s still freed because the prosecutor has been using his discretion as a cloak for discrimination. If we follow this line of reasoning to its conclusion, I think almost all prosecutorial discretion might be at risk.
April 14, 2010, 3:01 pmMartinned says:
Where? Chapter and verse, please.
April 14, 2010, 3:02 pmMichelle Dulak Thomson says:
Bored Lawyer,
I don’t see why the Nuremburg trials are called into question. Was there some other genocidal government that was being let off scot-free at the time?
It’s quite scary that you see that as a rhetorical question.
April 14, 2010, 3:03 pmBlue says:
Yes, I so want the US judiciary to be “spurred” on to prosecute by the rogue actions of a minor Spaniard who answers to no American. That sounds just peachy!
April 14, 2010, 3:03 pmEvan says:
IANAL, but:
April 14, 2010, 3:04 pmMartinned says:
Yes. Stalin.
April 14, 2010, 3:07 pmMartinned says:
It does if it is cast in the form of a statute.
April 14, 2010, 3:07 pmDilan Esper says:
“Genocide” in its literal sense, kemo sabe.
Your position is that the Soviet Union was never involved in any genocidal conduct?
April 14, 2010, 3:07 pmBored Lawyer says:
Not really. The question is why is the prosecutor “discriminating.” If its because of race or some other non-permitted reason, then yes. If its because the evidence in one case is weak, or because the crime is minor, or there are extenuating circumstances, then no.
April 14, 2010, 3:08 pmMartinned says:
They’re not immune, they are just outside the reach of the law, just like Roman Polanski was for many decades. Like Polanski, Ghadaffi may still someday get caught, just like Pinochet was.
April 14, 2010, 3:09 pmDilan Esper says:
It does if it is cast in the form of a statute.
But that’s circular. Statutes can be repealed by the legislature, or even perhaps declared non-binding or unconstitutional by a court in some countries.
The point is, these deals are not cast in stone. They involve risk on both sides, and it shouldn’t be portrayed as the worst thing in the world if the dictator later ends up in the dock.
April 14, 2010, 3:10 pmBlue says:
The year is 2015. President Palin is preparing to welcome the world’s leaders to the 70th Anniversary celebration of the founding of the United Nations. In secret, however, her Justice Department is working with the AG of Oklahoma City on indictments for “Crimes Against Humanity” of many of the world’s leaders–Putin in Russia, Hu in China, Raul Castro, Hugo Chavez, Robert Mugabe, and a score of other despots. On the 26th of June at the Plenary Meeting, FBI agents detain these leaders under those indictments and transport them to Oklahoma City for trial under US law as modified by ICC charter (and as agreed to by former President Obama when he convinced the Senate to ratify the Rome Accord in 2013 prior to the extinguising of the Democratic Party as a national organization in the 2014 election).
April 14, 2010, 3:15 pmMichelle Dulak Thomson says:
Dilan Esper, PLR is possibly reasoning (umm, that really needs scare quotes, but never mind) that social classes aren’t “peoples” in the sense that honest-to-God genuine genocide demands. The Soviets are only genocidaires if they want to wipe every last Ukrainian off the face of the planet; if all they want to do is eliminate the kulaks, that isn’t genocide, merely state-sponsored mass murder. So how dare we put Stalin in the same basket as Hitler?
April 14, 2010, 3:16 pmDudeman says:
Dilan:
I take it that because you think universal jurisdiction would be appropriate in the case of a US elected “Hitler,” you support Bush’s universal jurisdiction action in Iraq against Sadam Hussein (or would have based on a universal jurisdiction action.) Or, perhaps for more traction, if the US “Hitler” hypo is appropriate, why are you not calling for universal jurisdiction in the case of Mugabe, Castro, or Chavez?
The Japan example is irrelevant as in your case proposed it would be the Japanese themselves(not another country under the rubric of universal jurisdiction) who would be ignoring the amnesty.
Finally, this breaking news just in, Generalissimo Francisco Franco continues his fight to cling to death.
April 14, 2010, 3:17 pmMartinned says:
How does the surrender of a person to the ICC “suspend” any American judgment? On the contrary, the principle of complementarity as stated in art. 17 of the Statute assures that the ICC does not second guess bona fides national judgements:
April 14, 2010, 3:17 pmPLR says:
Certainly not. I was responding to the gentleperson who invoked Krugman, though perhaps he or she did so for reasons other than questioning which countries represented in Nuremberg had blood on their hands.
April 14, 2010, 3:22 pmDilan Esper says:
I take it that because you think universal jurisdiction would be appropriate in the case of a US elected “Hitler,” you support Bush’s universal jurisdiction action in Iraq against Sadam Hussein (or would have based on a universal jurisdiction action.)
It was proper to try Saddam Hussein, either in an Iraqi court, the ICC, or an American court (as Noriega was tried).
That said, Saddam Hussein’s ultimate fate is probably a very strong argument FOR the ICC. He was never held to account for his use of WMD’s or his genocide of the Kurds, and his trial and execution were horribly botched.
April 14, 2010, 3:23 pmTamerlane says:
By the way, in dealing with the bad qualities of the Franco regime, it’s worth asking and honestly answering three questions before unequivocally damning him. These are (1) Was there any justification for the putsch that Franco staged against the Republican government? (2) Did Franco seriously aid and abet the German Nazi and Italian Fascist regimes during WW II [any more than say the Republic of Eire]? and (3) Were the consequences of Franco’s victory in the Spanish Civil War better or worse overall than the consequences if the Republicans had won?
The answer to the first question is that the leftist government in Spain was pulling an Allende when Franco staged his revolt. The government was in gross violation of the Constitution and had begun arming militias as the starting point in what was clearly meant to be a revolution and the establishment of a leftwing totalitarian dictatorship. Franco was perfectly justied to respond with a revolt from the right. Spain was just about split down the middle on who to support. This is one more example of leftists crying foul when someone on the right beats them at their own game.
The answer to the second question is that Franco (and Salazar) got a lot of help from Germany and Italy. (They needed it to overcome the help provided by the Soviets to the Republicans.) In return Franco remained as neutral as Eire during the war. So no, Franco was not an ally of the German Nazis or the Italian Fascists.
The answer to the third question is obvious even if one only reads Homage to Catalonia. While the Republican cause seemed hopeful, and continuing even when it was hopeless, the leftists were ruthlessly engaging in purges against one another. During the Civil War Republican atrocities matched Falangist in every respect. Even Hemmingway, in For Whom the Bell Tolls, admits as much–see Pilar’s description of the atrocities committed against Falangists in her village. What they would have done to the Falangist supporters and even neutrals had the Republicans won can only be imagined, although Stalin’s work in the Ukraine, Poland, East Prussia, etc. might give some small hint. Turning to matters economic, even in the face of every attempt to destroy the Spanish economy after WW II, Spain and Spain’s citizenry did considerably better than communist-dominated East Europe and the citizens of those communist-dominated governments.
My personal feeling is that Franco wasn’t all that bad considering the alternative.
April 14, 2010, 3:24 pmMartinned says:
Yes, and if the Spanish parliament had repealed the amnesty statute, things would be fine. (Except that there would still be the problem of Garzon investigating the alleged crimes of dead people, which, I repeat, is the main problem here.)
Incidentally, there are places where the amnesty has been written into the post-dictatorship constitution, IIRC. [...searching...] Here’s provisional article 15 added to the Turkish Constitution:
April 14, 2010, 3:26 pmBlue says:
Yes, clearly the cause of international justice would have been better served by Saddam pulling a Milosevic and spending 10 years defending himself to death at The Hauge. THAT’s justice, baby!
April 14, 2010, 3:32 pmMartinned says:
Cool! (I particularly love that last sentence.)
Just a few questions: How exactly does the ICC charter modify or require the modification of US law? AFAIK it simply creates a new forum for certain crimes, it does not affect the jurisdiction or lack thereof of US courts over such crimes.
Also, are these charges non-frivolous? The ICC’s procedures carefully proceed, step by step, to assure that the prosecutor has met his burden of proof. This is the case long before the accused ever comes near the court. Just recently the PTC (= Pre-Trial Chamber) allowed the prosecutor to investigate certain matters in Kenia, being satisfied that he had met his burden of proof up to that stage. The purpose of these procedures is to filter out frivolous investigations and prosecutions. In your hypothetical US laws, are similar filters present?
Assuming the charges are non-frivolous, and involve a sufficient amount of evidence to meet the burden of proof at the preliminary stages, I can see no legal problem with the prosecutions you suggest. I do see a lot of potential diplomatic trouble, though.
April 14, 2010, 3:32 pmMark Field says:
Because Spain doesn’t have to take into account the self-protective interests of those who are guilty, nor the duress involved. In essence, such people are saying “give me amnesty or I’ll continue killing people”.
Putting aside the merits of any particular case, I’m waiting for your argument that the Eichmann trial was illegitimate.
April 14, 2010, 3:35 pmMartinned says:
It is, actually. That way, every single one of his crimes can be examined, and he can be made to answer for all of them. Someone hanged in the dead of night can continue to be a hero to the misguided few (many?), but what about someone who has argued in open court that the genocide in Srebrenica was justified?
April 14, 2010, 3:37 pmMichael B says:
“The ICC, Posner says, is an “inconsequential institution” that must make “inherently political” decisions about which cases to pursue, and which will be “squashed like a bug” if it ever goes after a powerful country.”
Even in principle, this seems strikingly obvious.
A Lawless Global Court, by John Rosenthal, represents a solid review of the subject. Excerpt, emphases added:
“Whereas all state members of the ICC are required to make assessed contributions to its budget, article 116 of its statute also provides for voluntary contributions “from Governments, international organizations, individuals, corporations and other entities.” Thus, the ICC’s very statute openly invites contributions from a whole range of “entities,” any of whom could have an interest in the outcome of proceedings and some of whom, notably “Governments [sic — states are presumably what is meant]” might even have been parties to the hostilities in which the alleged crimes over which the court claims jurisdiction are supposed to have occurred. Apparently having been made aware that such a provision could provoke controversy, in September 2002 the ICC’s Assembly of State Parties passed a remarkable resolution “requesting” that all such “entities” making voluntary contributions declare that their contributions “are not intended to affect the independence of the Court.” Much in the spirit of the statute itself, verbal assurances were here offered as the equivalent of substantive protections.”
April 14, 2010, 3:40 pmgeokstr says:
Not true.
What I see being advocated here is if you’re going to prosecute leaders who violated the human rights of their citizens, including murdering and torturing them, and expropriating their property, how about we do so across the political board? And if we were to actually prioritize it in order of worst first, it certainly wouldn’t be Pinochet at the head of the list. Wikipedia, hardly a conservative source, says he killed a whopping 1,300 people in his entire rule. That’s not even a decent week’s work for people like Castro and Mugabe and other communistas, and even they’re pikers in the horrifics of their genre.
What I do see here is the left being just fine with only prosecuting rightwingers, and then claiming the conservatives are defending Pinochet because they ask for some political balance and a sense of perspective in picking the targets.
April 14, 2010, 3:41 pmMartinned says:
By going after whoever we can get our hands on. The next time Castro goes to the UK, I’m sure Garzon would be happy to ask for his arrest, but I highly doubt that is going to happen.
This is not an issue of selective enforcement, this is a problem of “who can we get our hands on?”
April 14, 2010, 3:48 pmMartinned says:
Actually, since the Pinochet case, it’s become even easier for him to do that. Under the current law regarding the European Arrest Warrant, I don’t think the UK would have been able to refuse to extradite him.
April 14, 2010, 3:51 pm(I’d have to check to be sure.)
wm13 says:
What I also see is the left being just fine when Israeli officials are constantly threatened with arrest and prosecution by European governments, whereas Arab rulers like Qaddafi are not.
April 14, 2010, 3:55 pmMichael B says:
Oops, the following is the Posner quote I had intended to cite, leading in to my earlier comment:
“One cannot solve the perennial problem of “who will guard the guardians” by handing over authority to prosecutors and courts. But that is what the universal jurisdiction agenda boils down to. Mr. Garzon’s comeuppance should be a warning to those who place their faith in the ICC to right the world’s wrongs.”
Problem is, Garzon is but the tip of the iceberg, the ideological left applied to global “social justice” issues at large is at the base of it, obviously enough; international “progressivism,” etc.
April 14, 2010, 3:57 pmAnonsters says:
I can tell the direction the wind blows. It was only a matter of time.
April 14, 2010, 4:03 pmDilan Esper says:
Tamer:
Spain under franco was really awful. Even if we accept your premise that the previous government was worse, it wouldn’t excuse franco. After all, franco could have deposed the republicans and then created a government that didn’t torture political prisoners, imprison and kill artists, and enact repressive laws. If an armed robber holds up a woman who was just raped, we don’t let the robber off the hook.
Geok:
I assume that if an american president ordered the killing of 1200 american political opponents, and conducted campaigns to assasinate law abiding political opponents in foreign capitols, we would both find that to be reprehensible. Pinochet was a mass murderer; there is no requirement that we prosecute mass murderers in any particular sequence.
April 14, 2010, 4:10 pmMichael B says:
Anonsters,
Fact is, a prime alternative was Stalin himself. See Ronald Radosh’s and Mary Habeck’s (editors) Spain Betrayed: The Soviet Union in the Spanish Civil War, reflecting revisionist history in the finest sense of the term.
What was that about wind, again?
April 14, 2010, 4:12 pmAnonsters says:
So you’re casting your lot in with Franco, too?
April 14, 2010, 4:17 pmJMA says:
Unrelated, but: I’m pretty much done with the phrase “push back.” Can’t we toss that one with all the rest of the leftovers from the last election?
April 14, 2010, 4:36 pmMichael B says:
Not at all, Anon, nor did I say or so much as imply I was. I stated Stalin was a very real option during that period, and cited an entire volume of well documented revisionist history (most of it direct from COMINTERN and other Soviet documents) to point to that claim. Christopher Hitchens blurb on the volume sums it up succinctly enough: “Everything that was ever suspected about the Comintern line in Spain turns out to have been true.”
April 14, 2010, 4:38 pmChrisTS says:
wm13 says:
Then you need reading glasses.
We started all this because some folks are incensed that Garzon purportedly only went after non-leftist monsters in his international prosecutions (not so at home). Others responded that this was no reason to stop going after monsters. (And there has been some dispute as to just how monstrous various monsters are/were.)
No one has said they are “just fine with prosecuting only rightwingers.”
No one needs to say that to respond to the argument that we ought not to pursue monsters at all if we do not work out some percentage of prosecutions that please everyone’s notion of left and right.
April 14, 2010, 4:48 pmChrisTS says:
Several people already noted, implicitly or explicitly, that Stalin should have been a prime target. That has nothing to do with whether anyone is defending Franco.
April 14, 2010, 4:51 pmMichael B says:
I was not referring to anything other than the real world options present at the time of the Spanish Civil War, I was referring to those options and that war specifically, directly inline with earlier comments to that same effect. To put it in genteel terms, there’s a rather “storied” history of disinformation and dissimulation as applied to Stalin’s and the Soviet’s part, via the COMINTERN, in that war.
And there is a concern about selective prosecution against “right wingers” only, you’re incorrect on that account as well. That’s another, secondary reason I hi-lighted the Spanish Civil War and the COMINTERN’s and Stalin’s rapacious designs in that theater. The entire 20th century, in a wider, ideological vein, is, in substantial part, a history of selectivity on the part of the Left and its tell-tale, rapacious influences.
April 14, 2010, 5:25 pmyankev says:
But Moneyrunner, everyone knows that those two leaders always acted in the name of The People and with the best of motives. Only someone who was against The People would complain about the minor excesses of such leaders.
True. But no one is saying Pinochet should not be punished; people are saying it is an unsound philosophy that would let him be punished by a Spanish court.
Showing that a given legal philosophy is consistently applied in a biased, unsound and politicised fashion may not be a defense to the underlying charges, but may be evidence that the judicial philosophy in question is both unsound and was developed in bad faith.
April 14, 2010, 5:34 pmyankev says:
Have you no shame, sir?
April 14, 2010, 5:36 pmAndy McGill says:
Let’s leave it to a bunch of local judges in Spain as to whether President Obama should be indicted for allowing drone attacks. Let’s leave it to a bunch of local judges in Spain as to whether a peaceful transition is tenable to leaders of the Soviet Union or South Africa, even if those countries want to provide amnesty.
Heck, let’s leave it to a bunch of local judges in Spain as to whether peace in the Middle East will result in prison for the leaders who dare to sign an agreement.
What a world that would be.
April 14, 2010, 5:42 pmyankev says:
Actually, DerHahn recognized that fact when he said “usually don’t” instead of “never”.
April 14, 2010, 5:46 pmNowMDJD says:
He wasn’t defending the criminal conduct. He was opposing one possible remedy for the criminal conduct. Saying that the Spanish shouldn’t claim jurisdiction over criminal conduct in Chile is not the same thing as expressing approval of that conduct. You and some other commentators have been confuting these two issues in the comment threads on the Garzon affair.
April 14, 2010, 5:49 pmyankev says:
When we hang the last straw man, a capitalist will have sold us the rope AND the straw.
April 14, 2010, 5:49 pmNowMDJD says:
Ceaucescu wasn’t prosecuted in a foreign country, either (Nor in Romania!) So what’s your point?
April 14, 2010, 5:51 pmDilan Esper says:
Actually, DerHahn recognized that fact when he said “usually don’t” instead of “never”.
You missed the point, which is that something that is sometimes true and sometimes false therefore can’t really be the rationale for universal jurisdiction.
April 14, 2010, 5:53 pmDilan Esper says:
He wasn’t defending the criminal conduct. He was opposing one possible remedy for the criminal conduct. Saying that the Spanish shouldn’t claim jurisdiction over criminal conduct in Chile is not the same thing as expressing approval of that conduct
Yankev makes the same argument, and the problem was that this is a different argument from “what about Castro?”.
If Spain shouldn’t prosecute crimes by foreign dictators, that’s an argument. For various reasons, it may be a wrong one, or maybe not. But it has nothing to do with the SEPARATE contention of whether, if Spain DOES prosecute such crimes, it should do so selectively.
April 14, 2010, 5:55 pmNowMDJD says:
Precisely. Spain should decide for Spain, and Chile for Chile.
April 14, 2010, 5:55 pmDilan Esper says:
Ceaucescu wasn’t prosecuted in a foreign country, either (Nor in Romania!) So what’s your point?
Somebody claimed that none of the communist leaders were ever punished for anything and therefore (I guess) that meant that no right-wing dictators should ever be punished for anything. It seemed relevant that at least one former communist leader got punished pretty severely.
April 14, 2010, 5:56 pmq says:
Do commenters cast their lot in with Communist regimes every time they bring up Pinochet in a post about Communists? Is that something you would even notice?
How about we all agree that both Franco and Mugabe should be prosecuted. We can throw in Castro and Pinochet as well. The stuff about amnesty as a policy is far more interesting than these silly meta-arguments and “gotchas.”
April 14, 2010, 6:00 pmNowMDJD says:
And if they don’t think the deal will be honored they won’t accept it. Which potentially means more bloodshed during removal of a dictator. Which leads both factions to be out for revenge, and leads any faction to be less likely to turn over power.
Process counts for a lot.
April 14, 2010, 6:02 pmDilan Esper says:
And if they don’t think the deal will be honored they won’t accept it. Which potentially means more bloodshed during removal of a dictator. Which leads both factions to be out for revenge, and leads any faction to be less likely to turn over power.
That’s speculative. As I said, many dictators do take the deals, even though sometimes the deals have been later overturned or not honored, and some other dictators have been strung up on lampposts.
You can’t really draw a direct causal chain “you see, if you invalidate an amnesty the dictators will all stay in power”. Some will, some won’t, and some were going to try to anyway.
April 14, 2010, 6:07 pmNowMDJD says:
Precisely, kemo sabe. From the Wikipedia article “Volga Germans” (my boss’s firewall doesn’t let me link):
Approximately 400,000 Volga Germans were stripped of their land and houses, and moved eastwards to Kazakhstan in Soviet Central Asia, Altai Krai in Siberia, and other remote areas. Similar deportations happened for other ethnic groups, including North Caucasian Muslim ethnic groups, Kalmyks and Crimean Tatars. In 1942 nearly all the able-bodied German population was conscripted to the labour army. About one third did not survive the labour camps.[2]
April 14, 2010, 6:09 pmNowMDJD says:
He was tried by an Iraqi court. Where’s this universal jurisdiction?
April 14, 2010, 6:13 pmPorkchop says:
Actually, it can — no rule of law is perfect. The system just does the best it can (or maybe just blunders along) with rules of law that attempt to come close to enforcing norms that have been agreed upon by those who make the laws. Things slip through the cracks — sometimes we try to apply old rules to new situations, and they just don’t fit very well. Universal jurisdiction to try piracy cases has been around for a long time; the concept that “crimes against humanity” and genocide should be punishable as crimes (as opposed to being expected, if not accepted,as part of the normal course of war and conquest) is relatively new.
April 14, 2010, 6:16 pmDilan Esper says:
Universal jurisdiction to try piracy cases has been around for a long time; the concept that “crimes against humanity” and genocide should be punishable as crimes (as opposed to being expected, if not accepted,as part of the normal course of war and conquest) is relatively new.
I don’t know how many decades we have to have something before people stop calling it “new”, but universal jurisdiction with respect to crimes against humanity is now several decades old (and the concepts that it is based on are even older). That’s hardly “new”
As for torture, universal jurisdiction in the United States goes back at least 30 years
April 14, 2010, 6:21 pmyankev says:
If duly issued by someone with the legal and constitutional power to issue amnesty, why would it not bind the courts?
April 14, 2010, 6:30 pmyankev says:
Okay, I missed that one. One out of how many comments and commenters?
April 14, 2010, 6:39 pmI repeat, have you no shame, sir?
Dilan Esper says:
If duly issued by someone with the legal and constitutional power to issue amnesty, why would it not bind the courts?
Let me put it more clearly. In a particular legal system, an amnesty may or may not be legally binding in the sense that the courts will enforce it. But it doesn’t constitute any sort of a promise from the judicial system that someone will never be convicted of a crime– it’s just a promise from the political branches that they will not prosecute.
That puts it in very different stead from a plea bargain, which is governed by a very different set of reliance interests. The law can be changed, but a plea bargain fixes a punishment and really can’t be once it is accepted (absent fraud).
April 14, 2010, 6:39 pmyankev says:
How about something that is nearly always true and something else that is nearly always false?
April 14, 2010, 6:41 pmDilan Esper says:
How about something that is nearly always true and something else that is nearly always false?
Yankev, whether you like it or not, the issue with pirates was never that their acts were in international waters. Actually, universal jurisdiction over international waters is centuries old, extended far beyond piracy to all sorts of crimes, and needed no special doctrine.
The issue was that they were hostis humanae generis. In other words, it was that there was universal international condemnation of piracy among all civilized regimes, and the threat was so great that they could be arrested wherever they were found. Thus, you could be arrested in London for piracy that occurred in the territorial waters of Morocco.
We have simply expanded the category of hostis humanae generis to some extent. But the principle is the same– universal condemnation and gravity of the offense.
April 14, 2010, 6:49 pmDavid M. Nieporent says:
Dilan, that has the virtue of being quite clear. It has the vice of being pulled from your posterior, however. At best, it’s based on the odd idea that every country’s political system works as ours does. (Why can’t a plea bargain be changed after acceptance, for instance?) And it’s not even right in our system, unless one focuses overly narrowly on terminology. (An “amnesty” may be a promise not to prosecute, but a “pardon,” which also issues from the executive rather than the judiciary, is something entirely different.). But even assuming that one is operating under such a system, your second paragraph doesn’t follow in the slightest. And even if there were a “different set of reliance interests,” how would that be relevant to the underlying point?
April 14, 2010, 7:00 pmDilan Esper says:
Dilan, that has the virtue of being quite clear. It has the vice of being pulled from your posterior, however. At best, it’s based on the odd idea that every country’s political system works as ours does. (Why can’t a plea bargain be changed after acceptance, for instance?)
The distinction between prosecutorial discretion and court judgment is not pulled out of my posterior, David.
In any event, I accounted for the difference between legal systems. Indeed, it’s perfectly clear that SOME legal systems will honor any amnesty deals. But we shouldn’t think that it is some horrible broken promise when an amnesty is NOT honored and a mass murderer / dictator ends up on the dock.
April 14, 2010, 7:16 pmAnonsters says:
Please, moralize some more. You may convert me in the end, you never know. But do try really hard.
April 14, 2010, 7:55 pmPorkchop says:
Well, I seem to remember that Julius Caesar mounted an anti-piracy expedition in his youth. The Roman Catholic Church developed canon law doctrine concerning the law of war that was theoretically applicable in western Europe during the Middle Ages, but enforcement was by excommunication, not criminal enforcement. In the meantime, of course, the Mongols, Huns, Ottoman Turks, and many others proceeded merrily on their various trails of conquest, committing “war crimes” (not that they were recognized as such by the international community). The common law developed in England over centuries, yet it continues to evolve. If you know of any internationally sanctioned prosecution for crimes against humanity prior to those arising from World War II, please tell us. So, in context, “several decades” is very definitely “new.” (But I was a history major; perhaps my time scale is too long for you.) To expect some form of worldwide common understanding of the concept of “universal jurisdiction” in a matter of a few decades strikes me as unrealistic, considering that the countries of the world cannot agree on so many other, much easier issues.
April 14, 2010, 8:02 pmDilan Esper says:
Pork:
From a legal standpoint, 65 years old is pretty well established. For instance, strict products liability is only 50 years old, and is entrenched. Miranda came in the mid-1960′s and is completely entrenched, to the point that William Rehnquist wouldn’t overturn it. The landlord’s implied warranty of habitability is 40 years old or so, and, again, is entrenched. The core right to abortion in Roe v. Wade is settled law, and that case is just 37 years old. Executive privilege is entrenched and well established, and it was first recognized just after Roe. The Miller obscenity test dates from the same period.
So yeah, 65 years old is long enough that, for legal purposes, universal jurisdiction for crimes against humanity is well established.
April 14, 2010, 8:18 pmmariner says:
Duh!!
Pinochet is “right-wing”. Since when are other grounds required?
April 14, 2010, 8:42 pmmariner says:
PLR:
Perhaps some of you do not, but on the available evidence it seems that most of you do.
When the universal-jurisdiction crowd starts seriously pursuing leftists, cynical old sailors like me will start to believe that it’s really about justice.
I am, of course, not holding my breath.
April 14, 2010, 8:51 pmRicardo says:
So much the worse for the U.S. and U.K. for never making the case against Qaddafi. I’m not sure what this observation is intended to prove.
April 14, 2010, 9:34 pmChrisTS says:
yankev:
And, the hanged person will be the capitalist?
I’m missing something, here.
April 14, 2010, 9:37 pmChrisTS says:
Ta Da.
I can make little sense of much of this dispute. It’s like a ‘et tu non quoque.’
April 14, 2010, 9:37 pmRicardo says:
Where does this canard come from? The United Nations has operated a tribunal for several years now focused on prosecuting the war crimes of former high-ranking officials in the Khmer Rouge. The biggest case that the International Criminal Court for the former Yugoslavia ever faced was the prosecution of the head of the Socialist Party of Serbia and the former head of state of the Socialist Republic of Serbia. High-profile prosecutions of high-ranking leftist officials have had official UN sanction and have met with more success than Garzon-style prosecutions of right-wing dictators.
April 14, 2010, 9:43 pmChrisTS says:
Ricardo:
[but, but ...Garzon is a leftist hack!]*
*I employ the well-known ‘Sarcastro Device.’
April 14, 2010, 9:47 pmwhi says:
Why should be care that the offspring of a distinguished jurist thinks about anything?
April 14, 2010, 10:54 pmOrenWithAnE says:
There is no force that binds the sovereign will of the Spanish people.
You quoted it yourself! There is nothing in Article 17 prohibiting the ICC from declaring, on its own authority, that the proceedings in the US were not conducted independently or impartially.
That is, this provision is bizarre in light of the (presumed sincere) statements by the proponents of the Statute that they have no intent of turning their sights on the developed world. They say one thing but Article 17 gives them authority to do something entirely else. So, let’s lay it down very simply: either the ICC is empowered to prosecute Americans contrary to the judgment of the American legal system or it’s not.
If yes, then it will never be ratified by the US Senate nor will the Supreme Court, following the decision in Reid v. Covert, ever allow the US to turn a citizen over to a prosecution that does not comply with the 6A right to trial by jury.
If, on the other hand, we believe the proponent that claim this is a paranoid delusion on our part, then there is no logical reason not to amend Article 17 as requested by Clinton (that conservative bete-noire).
Something has to give here.
April 14, 2010, 11:10 pmDavid M. Nieporent says:
First, amnesty is not “prosecutorial discretion.” Second, of course there are distinctions, but the significance of these distinctions is what you’re pulling out of your posterior.
No, I didn’t mean in the fact that they were binding; I meant in the fact that they were conceptually different.
I hate to sound like a broken record, but why not? Why is amnesty any less sacred than a plea agreement?
April 14, 2010, 11:23 pmOrenWithAnE says:
Agreed. The morality of rule is contingent neither on the actions of other rulers or the hypothetical actions of the rulers’ political opponents (should they assume power).
I would have thought this was all entirely noncontroversial.
Disagreed. We should wish the best future outcome for Spain, Zimbabwe, Cuba and Chile. If that means prosecuting the officials, the ought to be prosecuted. If that means prosecuting none of the officials, they ought not to be prosecuted. If it means prosecuting some of the officials and letting the other officials go free, then we should do that.
I have virtually no concern for the administration of justice when it exacts a large cost on the future well-being of the nation. It is much better to live in peace, prosperity and let past injustice go unpunished than to risk continuation of a bloody conflict.
I never claimed it was such a direct effect. My point was that, when resolving a divisive and violent conflict (in Spain, one in which both sides committed heinous crimes), a nation might (in individual circumstance) chose to renounce (perpetually) the cycle of revenge in favor of a brighter future.
To me, that seems not only reasonable but eminently preferable to fighting it out for a few more decades. Accepting your position — that one side cannot promise perpetual amnesty — is a direct obstacle to achieving a real and lasting peace.
April 14, 2010, 11:27 pmPorkchop says:
First of all, who says it is “established”? There are quite a number of countries that disagree with the application of the concept, at least as applied to their citizens under certain circumstances. Second, there is a considerable difference between domestic law being “established,” as in your examples, and international law being “established.” Domestic law has, generally, an accepted uniform mechanism for enforcement; transnational law does not — it depends on the ad hoc cooperation of independent states that cannot be forced to act.
April 15, 2010, 12:04 amDilan Esper says:
If yes, then it will never be ratified by the US Senate nor will the Supreme Court, following the decision in Reid v. Covert, ever allow the US to turn a citizen over to a prosecution that does not comply with the 6A right to trial by jury.
This really misconstrues Reid. The US can extradite citizens to other countries under extradition treaties. Doesn’t happen very often, but it’s legal. And most other countries don’t comply with all of our constitutional protections.
April 15, 2010, 4:26 amDilan Esper says:
First of all, who says it is “established”? There are quite a number of countries that disagree with the application of the concept, at least as applied to their citizens under certain circumstances.
We’re deep in the weeds here, but there’s a process for opting out of an international legal rule as a “persistent objector”, and no country has with respect to crimes against humanity.
April 15, 2010, 4:27 amBlue says:
It’s been established for 65 years that throwing political opponents out of airplanes rises to the level of “crimes against humanity”? Um, no. Genocide of a race, ok. Ethnic cleansing, ok. A series of political murders…not so much.
April 15, 2010, 8:26 amBlue says:
So, by defining a crime against humanity to be, well, whatever I want it to be I have suddenly construction an international extralegal system that can review, overturn, and prosecute virtually all criminals at any time with absolutely no regard for either sovereignty nor the domestic courts of any country.
April 15, 2010, 8:29 amOrenWithAnE says:
You are right, it would be a pretty big expansion of Reid.
That said, the ICC is not a sovereign nation and the extradition framework need not apply. In fact, since in the alternative reality where the US ratifies the RS, the US is a participant ICC it would be interesting to see how the Court rationalizes the ICC’s identity for the purposes of constitutional law.
April 15, 2010, 11:08 amMartinned says:
Yes, there’s nothing in the Rome Statute that stops the bodies created by the Rome Statute from completely ignoring the Rome Statute. You got me, I give up. Then again, if you substitute “US Constitution” for “Rome Statute”, the same logic applies, so I’m not entirely sure where you’re going with this.
April 15, 2010, 11:25 amMartinned says:
Except that Double Jeopardy applies under art. 17 of the Rome Statute to all bona fides national trials. (It’s called the principle of complementarity.)
April 15, 2010, 11:27 amBlue says:
Unless the ICC decides that it doesn’t apply due to the facts of the case. It’s like most other EU-based “rights”–a broad statement followed by caveats that render the “right” essentially meaningless.
April 15, 2010, 12:24 pmMartinned says:
Like I wrote in response to Oren: Any organisation set up by and with a set of laws can conceivably ignore those laws. It is logically impossible for such a treaty/constitution/whatever to contain within itself the remedy for its own breach. The ICC has an internal division between pre-trial chambers, trial chambers and appeals chambers, and it has an assembly of states parties. That is all the internal division of power that is conceivable, and at par with the internal division of power of any national judiciary. (You do remember how you and many with views like yours always complain about the US Supreme Court, right?)
Beyond that, the remedy for a breach of the Statute by the ICC cannot logically lie in the Statute itself. In the US, the ultimate remedy for a breach of the constitution is the democratic process, the power of the states, and ultimately the people. For the ICC, there is the fact that they are powerless without the collaboration of the states parties, and the Dutch state in particular. (The ICC, like the Yugoslavia tribunal, uses the Scheveningen prison which is also used for normal Dutch prisoners, and run by the Dutch authorities.) This, in turn, means that ICC actions that are “ubjectively unsustainable” (to borrow a key phrase from the Garzon story that started this conversation) can be remedied in Dutch and – if necessary – European courts.
Long story short: the buck has to stop somewhere. We’re talking courts here, so they cannot be under direct democratic control. But indirectly, the ICC is on more leashes than I can count. (Did I mention the possibility of a Security Council resolution ordering the ICC to back off a case?) A healthy dose of paranoia towards all government entities is generally healthy, but one shouldn’t overdo it.
April 15, 2010, 12:52 pmMartinned says:
O, and another thing: Why do you prefer the US system where the Supreme Court makes up the exceptions out of thin air over our system where we write the exceptions in from the start? How is that for unfettered judicial discretion? This is not just about first amendment exceptions, either. (Though Carlin’s seven words still make for a pretty potent example.) The whole fun with Scalia’s magic list of second amendment exceptions is only just beginning. After McDonald, that’s where the 2A train goes next, and it is a matter that will be resolved by the Supreme Court by fiat, using pretty sounding arguments that have no basis in anything other than the policy preferences of the Justices in question. Don’t you think it would have been better to write the second amendment just a little bit longer, as (I think) many states have done since?
Kentucky:
Texas:
Florida:
See where I’m going with this? Which exact exceptions are appropriate is a matter for the normal constitutional amendment process. My point is merely that it is surely preferable to write them in rather than leaving the matter for the Supreme Court to make up out of whole cloth.
April 15, 2010, 1:04 pmOrenWithAnE says:
Maybe I should be more clear. There’s nothing to stop the ICC from, in compliance with the Rome Statute, declaring that the procedure in the US Justice system was not conducted ‘independently or impartially’. The clause is an invitation for subjective judgment — there is no objective standard of independence to which one can compare the process given.
That is, it seems to be entirely within the realm of the ICC, sincerely implementing the statute, to allow prosecution even after the US courts have acquitted the defendant provided they can convince themselves that the process was not impartial. This is not a high burden to meet nor does it require any dishonesty or
And what reason to we have to trust that trials in the courts of the United States will always qualify for this complementarity?
That is constituted in an unconscionable fashion rivaled only by the UN General Assembly.
April 15, 2010, 2:50 pmOrenWithAnE says:
To be fair, the Court has done a pretty stellar job to date.
April 15, 2010, 2:53 pmMartinned says:
…except the fact that US trials are normally conducted independently and impartially. This standard is no more subjective than the – on VC – much maligned definition of torture in the CAT and in US law. It requires judgement, to be sure. Montesquieu’s dream of judges as “la bouche qui prononce les paroles de la loi” has never worked anywhere, ever. Reality simply isn’t that simple. But there are limits to what one can, in good faith, describe as “not indepent and impartial”.
Contrary to your assertion, I don’t see how this is in any way a low threshold, at least not in comparison to the standards set by the US and other western constitutions for judicial process. Clearly a trial would have to fall well short of our domestic standards before art. 17 Rome Statute comes into play.
April 15, 2010, 3:01 pmOrenWithAnE says:
My fear is that this fact will not be a significant obstacle to the ICC asserting otherwise (again, I’m assuming 100% sincerity on the part of everyone here).
The US asked for a concrete assurance that the acts of the US government will always be respected and all we get are platitudes about good faith and judgment. Is that really supposed to allay our concerns about the ICC being turned against us in the future?
We are told time and again that the Court is meant only to operate in lawless areas where there is no government and no accountability. Out of the other side of the mouth, however, we here an absolute refusal to codify this obvious understanding in a manner that satisfies our concerns that it will not be applied our actions.
It is untenable for the ICC to maintain these contradictory positions — either the ICC can prosecute Americans (in which case the US will surely never ratify the Statute) or it cannot (in which case I would argue we ought to sign on).
April 15, 2010, 4:19 pmyankev says:
Thank you for answering my question. Of course, I already knew the answer. One commenter of many on a thread does (apparently) justify Franco, to the dissent of many of the conservatives present, and that proves that there is a reliable coterie of facists at VC.
It is not that I expected to convert you so much as to let you know that no one with an ounce of sense or eyes in their head accepts your silly smear as anything besides a silly smear.
April 15, 2010, 6:32 pmyankev says:
You have to read it in context, given the comment upstream about making a fortune by selling straw to leftists with which to stuff straw men.
April 15, 2010, 6:34 pmMichael B says:
“Please, moralize some more. You may convert me in the end, you never know. But do try really hard.” Anonsters
If of varying quality, there is little other than moralizations in this thread. You simply happen to reflect a more authoritarian or presumptive streak in that vein, willing not simply to question others, but positively eager to accuse others on a wholly unfounded basis – while not evidencing any reflection about your own views whatsoever.
To take a different example, the three primary sex scandal issues, 1) in public schools, 2) at the United Nations and 3) in the Catholic priesthood, reflects one prominent touchstone in this vein of selectivity, of what is filtered in vs. what is filtered out of the news, of juridical proceedings in general, of peoples’ very conscience and consciousness.
When justice is not equitable, it is no longer justice, at least it is not justice in any better informed sense of the term; rather, it is power-seeking.
April 15, 2010, 9:45 pmMartinned says:
Giving the US a free pass would go against the whole point of the ICC. Nobody gets a free pass, except within the framework outlined by the statute. (There’s prosecutorial discretion and the influence of the security council, most notably.) As a matter of principle, why would we want to rule out forever the possibility that someone in the US might commit one of the crimes over which the ICC has jurisdiction? Or, if we don’t want to rule out that possibility, why would we want to rule out forever the possibility that US authorities might let such a person get away with what they’ve done?
And if the actual principle of the thing isn’t enough, there’s always the pragmatism: if we give the US a free pass, why not every other country with enough political clout to bully the assembly of states parties? Russia? China?
April 16, 2010, 11:57 amElliot says:
Because we trust ourselves and our institutions to make the best decisions for the US, and we accept that we are responsible for living with the consequences of that trust.
April 16, 2010, 12:28 pmChrisTS says:
April 16, 2010, 12:45 pmOrenWithAnE says:
(0) I would accept a Security Council veto of any prosecution as satisfying the concerns I have raised.
(1a) It was claimed that the “whole point” was to bring the law to lawless areas. The US is not lawless and so excluding the US does not contradict the purpose one whit. Unless …
(1b) Of course, if the “whole point” was to bind the US then the proponents of the ICC are guilty of gross dishonesty when they claimed that American fears were unfounded.
Every time we have this discussion you vacillate between “the US has nothing to fear from the ICC” and “it would defeat the point to exempt the US from the ICC”. Both of those facts simply cannot be concurrently true!
(0) You are not ruling out the possibility that someone in the US might commit the crime, only ruling out the possibility of prosecuting under the ICC for that crime.
(1) Because in exchange for that principle you get the US to ratify the treaty and allow our government/military to cooperate and apprehend/deliver suspects plus whatever diplomatic cachet accrues from US participation.
(2) It’s interesting that you’ve reversed your 3:01 pm position that no trial in the US would ever fail to qualify as bonafide under Art 17. I’m not trying to be rude or accusative (I hope you believe me) but I cannot stand this doublespeak: either the ICC respects the decisions of the US government and courts as final or it reserves the right to prosecute anyway.
If the ICC went after either of those they would be crushed like a bug. The Netherlands relies very heavily on oil imports from Russia ….
Again, this goes to two radically different conceptions of the ICC. It is usually sold as a mechanism for policing the lawless areas of the world and dealing justice to the small-time warlords and thugs that commit atrocities there. Contrary to this definition is the grand (delusional) idea that the ICC will bring the law to international relations in general, including the relations between the great powers.
The US, Russia and China will never accept the latter and so it is best if the ICC decides to accomplish the former, as it is both a noble goal and well within practical reach.
April 16, 2010, 4:36 pmMartinned says:
This is what article 16 of the Rome Statute says:
A lot of places over which the ICC has jurisdiction are not lawless. The point is to make sure that, if they should become “lawless” in the future, the ICC will have jurisdiction. Since there is no way to know which countries will some day be taken over by our hypothetical dictator and/or communist conspiracy, the ICC most have jurisdiction over all.
“bind”? The point was to get the US to ratify the Rome Statute, so that it would be bound by it. Did anyone ever claim otherwise?
Sure they can. Unless you think it would be bad for the US if the American version of Hitler/Stalin were tried by the ICC.
Actually we don’t, but that’s irrelevant. In the ordinary course of events, the Netherlands has no more power over the ICC than any other country of its size. At the moment, the main problem with Russia and China is that Russia have not ratified and China have not even signed. However, like the US, they’re not getting a free pass in order to get them to do so.
Are you sure you don’t have the ICC confused with the ICJ? The ICC explicitly does what other bodies in international law cannot and will not: judge individuals. As we’ve already seen in the last few dozen comments here, the way this affects international relations in general is a bug, not a feature. (Hence the role of the Security Council I quoted above.)
That’s the idea. As for the “will never” part: The states parties do not pass out special favours to get such countries on board, but that doesn’t mean they won’t use ordinary diplomacy to persuade them. As my dad would say: No you’ve got, Yes you might get. (It sounds snappier in Dutch.)
Consider Russia’s role in the ECHR: They were so annoying in blocking the reform of Protocol 14, which was necessary in order to help the Court get rid of its ridiculous backlog of cases, that the other members of the Council actually adopted a new protocol, Protocol 14bis, which was designed not to require the unanimous approval of all High Contracting Parties. Fortunately Russia did finally ratify recently, so Protocol 14 will enter into effect on June 1, but it was a pain in the backside all the same. As for the cases themselves, Russia represents a full 27,7% of all pending cases (of the 1504 judgements in 2009 that found at least one violation, 210 were against Russia), and their track record for compliance is atrocious (which is why the same types of cases keep having to be brought over and over). None of this means, though, that Russia’s membership isn’t a net plus for the Russian people. By design, the Court itself will only be able to provide relief for a few of them, but the “naming and shaming” effect of Strasbourg rulings cannot but have a positive effect, however small.
(BTW, that’s an interesting one to ponder: arguably the countries of Western Europe don’t need the Strasbourg court in the same way that, in your undoubtedly humble opinion, the US doesn’t need the ICC. We can rely on our own courts for relief. And yet so many of the Court’s most important cases were against Western European Countries, like Soering v. UK, the McLibel Case, Lautsi v Italy, Procola v. Luxembourg, etc. If the UK needed to be told that it could not extradite people to the US if they would end up on death row there, if the UK needed to be told to give legal aid to their many libel defendants, if Italy needed to be told to get those crusifixes out of their classrooms, and if Luxembourg, Belgium and the Netherlands needed to be told to create a separate Supreme Court for Administrative matters distinct from the Crown and distinct from the Council of State, who’s to say that the US wouldn’t benefit from being party to an ECHR-type treaty? Note that this is a question distinct from the issue of the ICC, since the ICC only has jurisdiction over things everyone agrees are wrong, but it is something worth pondering all the same.)
April 17, 2010, 11:28 amOrenWithAnE says:
You misunderstand, I want a Security Council veto over the process in the same fashion that the permanent seats have a veto over all other Security Council matters.
Sounds grand, but the net result in the short term is the ICC having considerably less clout, not more.
At least now we are honest — the ICC purports to prosecute the United States if they believe she has become lawless. This is full stop unacceptable, as has been explained many times before.
Yes, many ICC supporters claimed that opposition in the Senate (or ASPA) were paranoid delusions and that the ICC had zero intent of ever opening an investigation into the acts of the United States government or otherwise impinging on our right to make foreign policy.
The very idea that there can be an American Stalin is a rejection of the first term. After all, if we are churning out brutal dictators that the US should absolutely fear any body that would challenge them. It would be folly for such a tyrannical nation to ever ratify.
Insofar as they ever attempt to judge an individual who is an American soldier or policymaker, they will be considered to judge American policy.
Then the US will never be a party.
Countries never particularly enamored of individual rights in the first place and, at least in the case of Britain, still retaining the odious notion of parliamentary supremacy.
Now, what would really be nice is if the ECHR recognized the universal human right to armed self-defense and started throwing out gun laws on the continent. I’m not holding my breath.
April 17, 2010, 1:03 pmOrenWithAnE says:
Sorry, that last snarky comment was over the top. I guess my point is that I have significant theoretical disagreements with the ECHR about the meaning of individual rights. Certainly most of what you explained to me in the union post (about a industry-wide binding labor agreements) are grossly in conflict with my beliefs, as are (of course) gun laws, hate speech laws and laws against denying the holocaust or defaming religion.
That is, conceptually there’s nothing wrong with the ECHR, if only they had the correct understanding of human rights :-).
April 17, 2010, 1:31 pmMartinned says:
Have you read it? It is a veto, except that it has to be renewed every year. (Or at least every year until the OTP is no longer interested in the case.)
Which is why countries ratify while they’re (still) democratic. Odysseus binding himself to the mast, etc.
Your loss.
In case you hadn’t noticed, the ECtHR, unlike the US Supreme Court, cannot simply go and make stuff up. (Well, except in Soering when they got around the problem that the ECHR and its protocols did not forbid capital punishment by focusing on the claimant’s treatment before his execution instead.
Let me get this straight: Is there “conceptually” nothing wrong with the ECtHR because the US are not a party, or would it be OK for the US to join if they were European?
April 18, 2010, 9:42 am