The Perils of Universal Jurisdiction

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20 Responses

  1. Matt Lister says:

    This is a very interesting post on what seems to me to be an important but also very difficult topic. (My impression is that many who write on this are not serious enough about the difficulties involved, both practical and normative as their [fully justified] outrage over the harms involved leads them to not think clearly enough about the difficulties. I’m glad to see that’s not so here.) Maybe we can get Bill Burke-White to comment on this since it’s partly his area, too. My own feeling, which is not close to well worked out, is that prosecution in cases like this by places such as Spain for anything other than injuries to its own citizens, and without the backing of an international court, seriously risks the legitimacy of the effort and creates great potential for harm. My impression is that the efforts placed into actions such as these would better be spent on deepening and furthering the ICC and other forums (regional ones as well) that would potentially have more legitimacy. But, I can’t claim to have very fully developed views on the issue. It is very nice to see a clear and good post on it, though.

  2. Patrick S. O'Donnell says:

    I agree with Matt. Pre-Rome Statute and Post-Rome Statute makes a difference in several ways, but particularly with regard to the principle of complementarity (Art. 17) enshrined in the Statute. In addition, with respect to universal jurisdiction and so-called “bystander” States, the principle of subsidiarity likewise recognizes deference to the territorial State or State of the alleged offender, presuming of course that is both able and willing to prosecute. There are various ways to prevent impunity, and much hinges on the choices made in this regard.

    Incidentally (or perhaps not), this case does not seem to fit well within Spanish precedent, as I learned in a brief paper* on the subject by one Cedric Ryngaert. Yet a recent ruling changes matters: “In 2005…in the Guatemala Genocide case, the Spanish Constitutional Court rejected the subsidiarity test as unduly burdensome for the victims.” As noted, our case here appears to confirm the claim that “the new approach will undoubtedly result in more admissibility decisions.” Ryngart concludes with an observation that may be close to the heart of the matter: “The Spanish-French approach to subsidiarity appears to be anathema to the philosophy underlying Article 17 of the ICC Statute.”

    *http://www.law.kuleuven.be/iir/nl/wp/WP/WP98e.pdf

    Of course your post raises other relevant issues beyond the principles of complementarity and subsidiarity.

  3. Tim McDonald says:

    Spain has exactly zero business in the entire matter. Nation states as codified by Westphalia are responsible within their own borders for justice. If a nation state declines to extradite, that is that, and you have to resort to other means.

    If Spain wants to be part of the justice process, all she has to do is send in her military, conquer the place, and take over the justice system or mount a covert op to either kill or kidnap those she wants.

    At that point Spanish judges would have vested authority to hold trials for Rwandan nationals. Until then, this Spanish judge with delusions of grandeur might as well be pissing up a rope.

  4. wlpeak says:

    “international criminal charges”. What a hoot. I must have missed the day we all became international citizens. International Treaty violations I might buy. But still, ‘universal jurisdiction’ is just another way of saying ‘jurist hubris’.

  5. whammer says:

    The notion of universal jurisdiction seems presumptuous and foolish to me anyway. “jurist hubris” indeed. If it does not rely on force for its authority then it’s isolated from any reality or prospect of actually having to enforce a verdict. It is free to engage in meaningless moral exercises at great distance from the subject. Utter nonsense.

  6. MarkJ says:

    Given Spain’s current birthrate, and current immigration levels into that country, Judge Andreu’s concept of “universal jurisdiction” will likely become irrelevant in, oh say, about 20 years.

  7. Flash Gordon says:

    David Hardy rightly points out that by this logic Spain could prosecute the French resistance or the Russian partisans. This is hubris by a once great country fallen into decadence, impotence and moral idiocy.

  8. A.W. says:

    You really need to reread Locke on this.

    There can be no “international justice” until and unless there is a legitimate international civil society—that is a real international government that covers the globe. And no, the UN is not it. First, as a matter of natural law, the UN would never be a legitimate authority over anything, being a club for dictators and all. Second, it is not as a matter of fact, thankfully, because its members remain independent.

    So with no civil society between them, the nations are in a state of nature with regards to each other. In that situation, to impose a process on it as though there was any regular or normal system of justice in play is a farce. And for a constituent part of the international community to do so, only increases it. If there is to be justice in the world it is made ad hoc, with wars and not courts.

    Tell me, if Spain is allowed to do this, then what is next? Shall China sit in judgment of the world’s leaders? Hopefully, you are not insane enough to say yes to that, but then who approves of the list of sufficiently non-Neanderthal regimes that can sit in judgment of the others? And even then you are likely to have wildly divergent views of human rights. For instance, an American court and a French court is likely to come up with very different answers on, say, the Israeli occupation.

    In a real way, the war crime trials of WWII set the worst kind of precedent. There shouldn’t have been a formal trial. Our leaders should have informally given them a chance to plead for their lives, and we should have just shot anyone who didn’t convince us. From its violation of ex post facto, to its silly notion of treating war as a matter of criminal process, those trials unleashed a flurry of half-baked ideas we are still living with. Admittedly, in the case of the Nazis, those ideas seemed to make more sense. But over the long term, the concept has seemed less and less intelligent.

  9. Matt Lister says:

    A.W.- the extent to which Locke is relevant for cases like this is of course debatable (I think there might be some, but not too much) but you need to get him right. Locke doesn’t at all say that there can be no justice outside of civil society or a government. He says quite the opposite, in fact, that justice is a natural relation that we all know already and that outside of civil society or the power of a government each of us has the right to enforce the law as we see fit, both in regard to ourselves and to others. It is because this right is likely to lead to conflict that we have _reason to form_ civil society and give up our right to private judgment, but we all have that right and both can and should exercise it without civil society. So, the actions of the Spanish judge, as problematic as I see them to be in many ways, actually fits quite well with what Locke says.

  10. Patrick S. O'Donnell says:

    Most of these comments seem to reflect an appalling (willful? inexcusable?) ignorance of the relevant literature on democratic theory and praxis, international law, human rights, and global justice. I have extensive bibliographies on all these topics should anyone be interested (patrickseamus”at”hotmail.com). Earlier versions of several of these lists are still available at PrawfsBlawg under “Research Canons” (see ‘Categories’).

    The comment by A.W., for example, blithely fails to acknowledge the many arguments on behalf of the presence of a “legitimate international civil society. What is more, he/she is apparently unaware of a notion of “governance” distinct from (although not unrelated to) that of government. The well-worn Hobbesian/”Realist” argument is chock full of eminently contestable presuppositions, assumptions and propositions, most of which are no longer applicable to the current situation (if they ever were) in the international arena (Cf., for starters, Charles R. Beitz’s Politial Theory and International Relations, 1999 ed., and the chapter, “Philosophy of International Law,” by Allen Buchanan and David Golove in Jules Coleman and Scott Shapiro, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law, 2002: 868-934).

    On “global civil society” see, again for starters:

    *Anheier, Helmut, Marlies Glasius and Mary Kaldor, eds. Global Civil Society 2001. Oxford, UK: Oxford University Press, 2001.

    *Anheier, Helmut, Marlies Glasius and Mary Kaldor, eds. Global Civil Society 2004/5. London: Sage, 2004.

    *Appiah, Kwame Anthony. Cosmopolitanism: Ethics in a World of Strangers. New York: W.W. Norton, 2006.

    *Archibugi, Daniele, ed. Debating Cosmopolitics. London: Verso, 2003.

    *Barry, Christian and Thomas W. Pogge, eds. Global Institutions and Responsibilities: Achieving Global Justice. Malden, MA: Blackwell, 2005.

    *Dryzek, John S. Deliberative Global Politics. Cambridge, UK: Polity Press, 2006.

    *Glasius, Marlies, Mary Kaldor and Helmut Anheier, eds. Global Civil Society 2002. Oxford,

    UK: Oxford University Press, 2002.

    *Glasius, Marlies, Mary Kaldor and Helmut Anheier, eds. Global Civil Society 2005/6. London: Sage, 2005.

    *Gould, Carol C. Globalizing Democracy and Human Rights. Cambridge, UK: Cambridge University Press, 2004.

    *Held, David and Anthony G. McGrew, eds. Governing Globalization: Power, Authority, and Global Governance. London: Polity Press, 2002.

    *Kaldor, Mary. Global Civil Society: An Answer to War. Cambridge, UK: Polity Press, 2003.

    *Kaldor, Mary, Helmut Anheier and Marlies Glasius, eds. Global Civil Society 2003. New York: Oxford University Press (with the Centre for Civil Society and Centre for The Study of Global Governance, London School of Economics and Political Science), 2003.

    *Keane, John. Global Civil Society? Cambridge, UK: Cambridge University Press, 2003.

    *Moellendorf, Darrel. Cosmopolitan Justice. Boulder, CO: Westview Press, 2002.

    *Treves, Tullio, Marco Frigessi di Rattalma, Atilla Tanzi, et al., eds. Civil Society, International Courts and Compliance Bodies. The Hague: T.M.C. Asser Press, 2005.

    The aforementioned bibliographies also contain titles germane to the topic of global civil society.

  11. Kevin P. says:

    Patrick, perhaps these esteemed authors above can be held responsible for not preventing the Hutu genocide against the Tutsis in 1994.

    No? If the “global civil society” didn’t prevent the genocide then, and isn’t preventing the genocide in Darfur now, then the global civil society should mind its own business.

  12. TMLutas says:

    Patrick S O’Donnell brings up many eminent references. They all fail against one simple test use case. What happens when someone says “to hell with you, try that and I’ll kill you”. Inside a country, the results are predictable, the police or gendarmes are called out, the military if it’s a really tough bunch and the preeminence of the state is restored in a hail of batons, tasers, and bullets. And what happens when the international order is given a similar obscene gesture? The differences are stark and reveal the truth. There is no global civil society because no society exists without being able to enforce its will.

    No laundry list of scribblers, no matter how preeminent, can have their theories of political power survive the impudent middle finger backed up by enough force to make it stick. The US cares because every time that the international community is revealed as the impotent talking shop it actually is, all the emasculated jurists and diplomats look to the US to supply the virility to cover up the more gelded reality.

    Spain is writing a check that she hopes the US will honor without consulting with the US. In fact, you could even call the actions of the Spanish jurists unilateral. Aren’t we all supposed to avoid that?

  13. Patrick S. O'Donnell says:

    Ah, the straw man: no one has put forth the proposition that global civil society is the solution to all that ails us or that it, and it alone, was or is capable of preventing genocide. Matters are a bit more complicated than that, to put it feebly. There are many “actors” in the international arena that have roles to play, in addition to nation-states themselves….

  14. Patrick S. O'Donnell says:

    I should have said “in addition to nation-states acting on their own….”

  15. straightarrow says:

    I submit that people who managed to stop a genocide and managed to prevail politically may take umbrage at such arrogance and this particular judge may find himself bound and gagged and on a one-way trip to Rwanda to face a trial of his own.

    Direct action seems to be the modus operandi of the current administration in Rwanda. Since all their pleas for help went unheeded they may take great exception to a Spaniard busybody who thinks he is beyond their reach.

  16. Cecile Musabyimana says:

    Dear all, it’s a shame for us rwandans victims of Hutus and Tutsis extremists hatred to read your comments. I noticed that most of you are or may be good lawyers but you are ignorants about the secret behind mass killings in my home country (Rwanda). I am sure that the information you got about the mass killings in Rwanda, came from extremists from both sides, I mean from tutsis and hutus extremists. You have already fallen in the trap of extremists of both sides and you have been blinded by good speeches full of lies prepared ingeniously at your attention. For those who are really interested to know “THE TRUTH” about the true story of Mass Killings and/or Genocides in Great Lakes Region of Africa, find out the CORRECT answers to the following questions by setting out your independant investigations, otherwise you will never know the truth about Rwandan history.

    1. Based on the period starting on October 1990 (the date of rwandan invasion led by a group of rwandan tutsi refugees) and ending in December 2000, did the mass killings of tutsis by hutus occurred? If yes, when, why and who are the principal organisors of those atrocities ( At least, name 10 people)? Approximately, how many tutsis killed by hutus during the same period?

    2. Based on the period starting on October 1990 (the date of rwandan invasion led by a group of rwandan tutsi refugees) and ending in December 2000, did the mass killings of hutus by tutsis occurred? If yes, when, why and who are the principal organisors of those horrible crimes (at least name 10 people)? Approximately, how many hutus killed by tutsis during the same period?

    3. Based only on the period starting on April 1994 and ending in July 1994, how many hutus killed by hutus? Find out why?

    4. Based only on the period starting on April 1994 and ending in July 1994, how many tutsis killed by tutsis? Find out why?

  17. wlpeak says:

    @Patrick S. O’Donnell.

    Appeals to authority with bibliographies are still just rhetorical evasions.

    There seems to be a fundamental disconnect between Political vs Legal views of ‘International Law’ in the Academy and between Academic and practice in general. Position papers, legal theories, and echo chamber consensus can not replace the reality of state sovereignty.

  18. Patrick S. O'Donnell says:

    Appeals to authority are frequently a perfectly acceptable form of argumentation (i.e., they are not invariably fallacious), as is made clear in Douglas Walton, Appeal to Expert Opinion: Arguments from Authority (University Park, PA: Pennsylvania State University Press, 1997).

    The works I cited contain arguments: if you read one or more of them you would be confronted with arguments, although I suspect in your case an argument is equivalent to a “rhetorical evasion.”

    I can cite, would it be worthwhile to do so, arguments from within political science as well as within the legal world (fuzzy boundaries here in any case) which point out in exquisite detail the hazards of reifying the notion of state sovereignty, or of seeing it as an “all-or-nothing” affair, or of speaking with supercilious confidence about the “reality of state sovereignty,” but your comment suggests it would fall on deaf ears.

    There is always some distinction between description and prescription, between what is the case and what ought to be the case, between the factual and the normative; and yet, at the same time, these realms are entangled with each other, and many “position papers” and “legal theories” represent attempts to make sense of what has occurred and is occurring “on the ground.” And on the ground, there is no one picture, there is no transparent instance of what you call the “reality of state sovereignty,” things are far messier than that, whether we are referring, for example, to Taiwan, Sudan, “Kosovo,” Iraq, or the European Union.

    Should you care to conscientiously overcome your folly, you might read, in no particular order, Daniel Philpott’s Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (2001); Stephen D. Krasner, ed., Problematic Sovereignty: Contested Rules and Political Possibilities (2001); Neil MacCormick, Questioning Sovereignty: Law, State, and Practical Reason (1999), and Jean Cohen’s article, “Whose Sovereignty? Empire Versus International Law,” in Christian Barry and Thomas W. Pogge, eds., Global Institutions and Responsibilities : Achieving Global Justice (2005): 159-189.

    It’s nice to see anonymous comments that revel in pontification and snarkiness while revealing a dispositional refusal to cite, let alone read, the relevant literature. This blog deserves better.

  19. wlpeak says:

    @Pat

    Thank you for both your condescension and the irony of using an appeal to authority as justification for appeals to authority.

    I hope you didn’t pay too much for that degree.

    Please flood the world with more bibliographies. They are ever so more convincing than mere argument.

    see Aristotle, Bacon, & Mills et al.

  20. chuck house says:

    I would actually like to download or otherwise obtain the indictments to see what they say. Can anyone tell me where I can get them, in english or spanish?

    thank you!