Tag: universal jurisdiction

Garzon’s Reign in Spain Falls with Mainly Who to Blame?

It was announced last week that Judge Bathazar Garzon will be investigated for over stepping his authority for knowingly taking on a case that was outside of his jurisdiction. Garzon is, of course, famous for indicting Chile’s General Pinochet for crimes against humanity in the 1990s which lead to his arrest in London (although he eventually was let go on medical ground – and died).

Since 2008, Garzon had apparently been turning to domestic figures, looking to open an investigation and prosecution against those Spanish officials which allegedly were involved in acts during the Franco dictatorship that could amount to crimes against humanity. While there is a 1977 amnesty law – passed to help with the transition to democracy – it was Garzon’s contention that such a law could not cover crimes against humanity and therefore officials could be prosecuted.

The probe into Garzon came after two far right political groups brought legal action against him. For his part, Garzon is arguing that the probe amounts to a serious attack on judicial independence.
Clearly the situation is serious for Garzon because it will probably suspend his career for some time and it could result in him losing all of his judicial powers in Spain.
A couple of thoughts on this –

Reaction from the left and right has been fairly predictable. This article on the Guardian website declares that “justice itself may be the victim” if Garzon is found guilty. His indictment of Pinochet is described as ushering in “the heyday of international justice”.

Really? A heyday? It never seemed like much of a heyday to me – the number of war crimes trials is still relatively low and predominantly focuses on African countries.

Additionally, the movement to setup the ICC had already been established by the time of Garzon’s indictment of Pinochet and the ICTY and ICTR were already functioning (sort of in the case of the later). Garzon is not and does not singlehandedly represent international justice… just one kind of form of it that people on the right tended to find irritating.

Speaking of the right, Eric Posner today describes the charges in the Wall Street Journal as “the end of a failed experiment in international justice” and that universal jurisdiction “increasingly and thankfully, looks like a pipe dream”. Posner then predictably launches into an assault against international law the ICC.

The problem with Posner’s argument is that what Garzon was doing and what the ICC does are very different things. The former was using universal jurisdiction within his own state to prosecute those he saw as war criminals in Europe. The ICC on the other hand has a Statute and binds member states (although citizens of a non-state party may be indicted if they commit a crime on the territory of a party).

Of course there are some similarities here but Posner is making a mistake in assuming that there is one giant global justice movement (although sometimes even international lawyers like to portray it that way). There are different approaches and different legal mechanisms. Stopping Garzon is not going to take away from the functioning of international courts.

However, one thing that Posner does get right, I think is that we have gotten away from the original purpose of universal jurisdiction :

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.

I think he has a point here – that international lawyers have tried to stretch a concept over a larger and larger areas where it may not necessarily fit so well.

Still, the key thing here in relation to Garzon is that the charges against him do not mean that the ICC will be going away anytime soon. Nor does it mean that global justice is collapsing forever. No one figure can represent all that is international legal justice.


Is the jury out on universal jurisdiction?*

The two different countries I call home (Canada and the UK) have recently had to deal with universal jurisdiction in relation to war crimes.

First, as I’ve written about here, it has come to light that Canadian officials likely knew that Afghans captured by Canadian forces and subsequently transferred to Afghan prisons were being tortured. Failure to react to such allegations and relevations is a crime under the Third Geneva Convention Relative to Prisoners of War. Yet, what is interesting about this particular issue is that the Geneva Convention is quite clear that it is the government (as opposed to the military) is responsible for the violation of the law.

Yet the Canadian government has so-far refused to open up an investigation into the allegations (made by a Canadian diplomat, Mr. Colvin who served in Kabul and now does so in Washington). Instead, the issue is being handled by the Military Police Complaints Commission. The question is whether or not this is sufficient for the International Criminal Court – of which Canada is a party – who could potentially begin an investigation if they felt that the actions of Canada were insufficient. That the ICC prosecutor, Luis Moreno Ocampo has previously indicated this year that he willing to open up investigations into Western governments, does seem to leave the Canadian government in a potentially vulnerable position.

Second, a judge in the UK recently issued an arrest warrant for the former Israeli Foreign Minister Tzipi Livni for war crimes at the request of Palestinian plaintiffs. The allegations made against Livni were that she was responsible for war crimes committed during the Israeli offensive in Gaza last year. The warrant was revoked when it was announced by a very angry Israeli government that Livni would no longer be visiting the UK for her scheduled meeting with UK government officials. Additionally, the warrant was the cause of significant embarrassment for the UK government whose role in the Middle East peace process is now in some doubt (particularly as Israeli officials will now not be particularly likely to visit the UK). But the Court which issued the warrant has the right to do so at its own discretion. As war crimes have universal jurisdiction, the court felt that it was free to act.

For advocates, of universal justice, the implications of both of these cases are clear: it is about promoting the rule of law and addressing grievances so that real peace can be built. More simply, it’s the idea that justice should not stop at a national border. Officials, whether they are the Canadian Minister of Defence, the President of Sudan or the former Israeli Foreign Minister should all be susceptible to indictment.

And clearly, for the governments of these countries, it is about pragmatism. International legal arrangements which effectively damage diplomacy, or the ability of officials to do their job, is of benefit to no one.

But in reality, such concerns may also extend to the international legal institutions themselves. Although Ocampo may be a fan of universal jurisdiction, this may be tempered by a degree of realism. As the ICC and the US government under the Obama Administration are slowly working towards a new understanding (if not an entirely improved relationship), any attempt to prosecute Canadian officials may actually scare away the American government even further from the ICC – particularly given its skittishness about “activist” lawyers, politicized cases under the banner of universal jurisdiction.

To some extent it comes down to the old (clichéd?) question of “Order vs Justice” in International Relations – whether we should let justice be done though the heavens fall, or whether order without justice can really be considered any order at all. Perhaps more simply, it is at what cost international institutions (or even domestic ones) are willing to demonstrate their power – even perhaps at the risk of losing it. If they do act, they may be limited by politics; but if they don’t, they already have been.

*See what I did there? That’s the kind of skill you learn in a quality grad school.


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