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Thursday, May 21, 2009

Prawfsblawg Gets Results: A Post by Eugene Kontorovich

I recently criticized in print and more extensively on this blog, Spain's highly selective prosecution use of universal jurisdiction. Spanish courts have pursued charges against foreigners involved in highly complex, politically charged scenarios and not even in their custody; that they have gone so far as to order the release of  captured pirates, the paradigm international criminals. Apparently spoke Spanish politicians were reading, and it looks like the universal jurisdiction statute will be repealed or greatly limited. Actually Spain was responding to political pressure from America, China and other countries whose officials are being investigated by Spanish magistrates for things having absolutely nothing to do with Spain. The same thing happened in Belgium when they began using their universal jurisdiction statute aggressively -- American and Israeli pressure led to a legislative change.


Indeed, politicians in most countries that aggressively use universal jurisdiction are not very happy with what the courts are doing. This suggests that while universal jurisdiction may have gained broad acceptance within the narrow circles of international legal academics and activists, the norms have not defused more broadly, and have not been adopted by the statesman that determine national policies.


In a provocative post on OpinioJuris, Ken Anderson wondered why Democrats are not more alarmed by the use of universal jurisdiction against American officials. Surely, what is used against Republican officials today could be used against Democrats; consider Pres. Clinton’s massively illegal bombing of Serbia; or Pres. Obama’s escalating policy of targeting killings of Pakistani and Afghan pseudo-civilians (and their civilian neighbors).


Ken suggests that the Democrats may not be worried because they know the Europeans won't prosecute them, because of a mutual understanding that the Democrats are the good guys. Thus, Democrats might not be afraid to see foreign universal jurisdiction prosecutions increase, because they know it's only domestic affect would be to put increasing pressure on Republican officials. Of course selective prosecution is one of the greatest dangers of universal jurisdiction. The Spanish are prosecuting the US, but not Iraq or Syria; Israel
but not Hamas or the PA. Why not Republicans but not Democrats?


Consider two arguably illegal American wars:

Serbia and Iraq. In both cases, the US sought and was denied Security Council approval, but bombed anyway. The former war is long forgotten, and the latter considered by many a massive defiance of international law. I think the difference is not entirely attributable to the political parties involved, though I wouldn't dismiss that consideration. Rather, the difference in parties was accompanied by a difference in policies and worldviews. Everyone understood that attacking Serbia, despite Clinton's protestations to the contrary, was not particularly useful for advancing American security interests. The Iraq war, on the other hand, was against a long-standing enemy of the United States-- the motive was clearly not altruistic. Just as there may be a double standard for “us” and “them” – much greater criticism and scrutiny of Western misconduct rather than non-Western misconduct – there may be a double standard based on whether the given conduct is designed to help us or them.


Put differently, given that nationalism has become a dirty word in Europe, actions by Western nations designed to advance a classically conceived national interest will face heightened suspicion. The Obama administration's reputation for internationalism may give it the benefit of the doubt for a while.

 That said, I think it bears noting that the official position of the Obama administration as far as I can understand it is as opposed to foreign prosecutions of US officials under universal jurisdiction as was the Bush administration. And the overwhelming tendency of any administration will be towards risk aversion in these matters. Ken has argued that by calling prior conduct torture but not prosecuting it, Obama sets the stage for, indeed invites, foreign universal jurisdiction prosecution of Bush officials. Maybe. I'd certainly say it would invite a fascinating inquiry into the meaning of complementarity – the idea that universal jurisdiction should only be used when the primary country involved is unable or unwilling to bring prosecutions because domination by the accused. Would Europeans say Obama is “unwilling”  to fulfill his international legal duties – itself a heavy accusation?

Posted by Administrators on May 21, 2009 at 01:59 PM in Current Affairs | Permalink


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For more information on how NGOs exploit universal jurisdiction statutes to achieve political goals, see "NGO Lawfare: Exploitation of Courts in the Arab-Israeli Conflict" at www.ngo-monitor.org

Posted by: Anne Herzberg | May 24, 2009 2:24:29 AM

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