Portrait of a Travesty

Friday, October 9, 2009

When several stories about international criminal law suddenly make the headlines, is it only coincidence or should we connect the dots? This relatively small niche in international affairs has recently produced some big news:

  • A Spanish judge is investigating Bush administration officials, including former attorney general Alberto Gonzales, for alleged torture at the Guantánamo detention camp, even though the events took place five thousand miles from Madrid.

  • The prosecutor of the International Criminal Court (ICC) is considering an investigation of Israel for alleged war crimes in Gaza, even though Israel is not a party to the court and the Palestinian Authority, as a nonstate actor, cannot bring a claim. Meanwhile, a court in equally faraway Norway is examining similar charges.

  • John Demjanjuk was deported from Ohio to Germany for alleged acts of genocide as a concentration camp guard during World War II, and a Spanish court is weighing similar charges against three others.

  • The prosecutor of the International Criminal Court charged the president of Sudan with war crimes in Darfur, prompting a crackdown on nongovernmental organizations (NGOs) and an increase in violence in the region.

  • Several other criminal matters are brewing in Africa, including a report from the Physicians for Human Rights concluding that Zimbabwe’s collapsing public health system should be investigated by the ICC as a crime.

  • Pirates have captured oil tankers and other vessels, holding the ships and crew for large ransoms in obvious violation of international law; so far no international court has taken legal action.

These dots may be connected in several ways, some more troubling than others. For example, one of the underreported stories of the post–Cold War era is a large expansion of international courts and tribunals generally. More than thirty such bodies have been created in the past twenty-five years in fields including criminal law, human rights, the environment, and trade. One report acknowledges that “government leaders now express concern over ‘tribunal fatigue.’ ”

An optimist might interpret this trend as an increase in the rule of law. Others might worry that the proliferation of international courts and tribunals is part of a larger move toward global governance at the cost of national sovereignty, or an effort by smaller nations and NGOs to tie down global giants such as the United States through the judicial process. The Obama administration’s support for increased reliance on international law may further embolden global judicial activism.

LIMITED BEGINNINGS

The arena of international criminal law is relatively modern, beginning with the Tokyo and Nuremberg war crimes trials in the 1940s, which were a kind of limited victors’ justice imposed on the losers of World War II. Not until the 1990s, with the creation of ad hoc criminal tribunals for genocide, war crimes, and crimes against humanity in Rwanda and the former Yugoslavia, was a broader international criminal justice effort undertaken. Then, in 1998, a group of small and medium-sized “likeminded states” joined with human rights NGOs to create an aggressive new model for a permanent International Criminal Court.

But international public law, including international criminal law, is not “law” in the sense that Americans understand it. With no constitution or world body to establish and enforce laws, it is more like a series of norms to which nations may agree and aspire. Increasingly it has also become a tool of global politics employed by nations lacking economic, military, or diplomatic power to limit the role of more powerful nations. For targeted countries, such as Israel or the United States, expanded international criminal law creates a trade-off with national sovereignty, especially when distant courts decide they can take up a case against your citizens.

More than thirty international tribunals and courts have been created in the past quarter-century in fields that include criminal law, human rights, the environment, and trade.

Take the Spanish court pursuing former Bush administration officials for alleged torture in Guantánamo or the court in Norway investigating Israeli leaders for alleged war crimes in Gaza. Courts historically limit their jurisdiction to crimes that occur within their territory or, in certain cases, involve their citizens. But some nations, especially in Europe, have passed laws purporting to give their national courts “universal jurisdiction” over genocide, war crimes, and crimes against humanity (including torture) on the grounds that the offenses are so serious that any court can assume jurisdiction. You may recall Belgium’s attempt to become the world’s courtroom on that basis; it withdrew its claim in 2003 after Defense Secretary Rumsfeld and other U.S. officials pointed out the impracticality of expanding NATO headquarters in Brussels were U.S. officials to be arrested or detained when traveling there.

The aggressive Spanish judge, Baltasar Garzón—who also pursued former Chilean strongman Augusto Pinochet—claims he can take jurisdiction over alleged U.S. torture in Guantánamo, even though it is nowhere near Spanish territory and Spanish citizens are not involved in most of the allegations. Similarly, Norway claims it has a right to investigate alleged Israeli war crimes in Gaza, distant not only in miles but in culture and heritage. Questions of torture in the war on terror or war crimes in the Middle East raise complex political, cultural, diplomatic, and military issues that are not easily, or even properly, resolved by criminal judges in Madrid or Oslo. These are essentially political matters masquerading as legal cases. Fortunately, Spain’s attorney general is advocating new limits on his nation’s universal jurisdiction laws, such as those Belgium adopted a few years ago.

But the International Criminal Court in The Hague is also flirting with politics by other means, a concern the United States and other world powers have had about the court since its inception. For example, the Palestinian Authority asked the court to investigate actions by Israel in Gaza during the Operation Cast Lead incursion in late 2008. The prosecutor correctly responded that because Israel was not a party to the court and the Palestinian Authority was not a nation-state, he had no jurisdiction. But shortly thereafter, presumably under intense political pressure from NGOs and Arab states, the prosecutor said it might be possible that the Palestinian Authority was a de facto state in Gaza and that he would reconsider—even though no United Nations roster, or any other listing of states, lists a Palestinian entity. In fact, the question of Palestine as a state is one of the most important political issues in the Middle East peace process. It is not a matter for courts, much less a criminal court, to be taking up.

CRIMES UNPUNISHED, PERPETRATORS AT LARGE

The ICC prosecutor’s indictment of Sudanese President Omar al-Bashir last spring illustrates another problem. Here the court has jurisdiction, and there is clear evidence that war crimes and crimes against humanity have been committed in Sudan’s Darfur region. Yet by wading into a complex military and political quagmire the court has, at least initially, seemingly made matters worse. In response to ICC charges, Bashir and his allies have cracked down on NGOs performing humanitarian relief, largely because they are among those who have shared evidence of abuses with the court. Moreover, violence has increased, and Bashir himself has not been captured or arrested. Is it wise to be turning these difficult situations into criminal cases, even when the facts warrant it?

With no constitution or world body to establish and enforce it, “international law” is more like a series of norms to which nations may agree and aspire.

Even as international courts and prosecutors seem to be stretching their mandate by taking up cases they arguably should not, some of the most obvious violations of international criminal law are left untouched by legal and judicial authorities. For instance, the doctrine of universal jurisdiction, by which Spain and Norway seek to dabble in Guantánamo and Gaza, was originally advanced to deal with the crime of piracy. The aggressive prosecutors in The Hague, Spain, and Norway are silent in the face of maritime piracy, with only one perpetrator taken to court so far—in New York. Nations that have tried to help with the problem have largely engaged in “catch and release,” claiming they had no jurisdiction to hold or charge the pirates. If universal jurisdiction means anything, it should be helping aggressive courts in Western Europe fill their dockets with such cases.

Even as international courts and prosecutors seem to be stretching their mandate, some of the most obvious violations of international criminal law are left untouched.

Ultimately, it seems that the dots of increasing international criminal court activity do, in fact, connect into a larger picture of global judicial activism, taking up larger political and military disputes as criminal court cases. Although the United States is one of the world’s major proponents of the rule of law, the Obama administration, which has expressed greater sympathy to international treaties and courts than its predecessors, would be wise to travel this path cautiously, recognizing that many of these courts would readily tie down Gulliver if given the opportunity.