Crimes Outside the World's Jurisdiction
By David B. Rivkin Jr. and Lee A. Casey

A crusading Spanish judge, Baltasar Garzón, has been winning praise from human rights groups for trying to prosecute members of the military juntas that ruled, and terrorized, South America in the 1970's. In 1998, he tried to extradite Augusto Pinochet, the former Chilean dictator; last month he got custody of a former navy lieutenant accused of genocide and terrorism in Argentina.

The praise isn't surprising: prosecuting people who are apparently escaping punishment for horrible crimes seems fundamentally sound. The problem is that efforts by Judge Garzón, and others, are based on a legal doctrine that has worrisome implications. That doctrine is "universal jurisdiction," under which every state is entitled to prosecute and punish the officials of every other state for "international" offenses. It is a principle that even its most active international practitioner, Belgium, is wisely starting to reject: the governing party plans to amend a law under which activists tried to prosecute George H. W. Bush, Gen. Tommy Franks and Prime Minister Tony Blair for human rights offenses in connection with the wars against Iraq, even though nobody involved is Belgian.

By contrast to those named in the Belgian cases, the man whom Judge Garzón has jailed, Ricardo Miguel Cavallo, doubtless richly deserves prosecution. Mr. Cavallo is accused of kidnapping, torturing and murdering hundreds of people during the "dirty war" in Argentina from 1976 to 1983. Under Argentina's amnesty laws, however, Mr. Cavallo cannot be punished; he was extradited to Spain not by Argentina, but by Mexico, where he was living. Judge Garzón is essentially ignoring Argentina's own history and desires.

Universal jurisdiction does have a proper place in international law. It began as a device to fight piracy and slave trading, offenses that took place on the high seas, beyond the boundaries of any individual state. In more recent years, however, universality has been asserted for an increasing number of human rights offenses, even though there is little practice (in the form of actual prosecutions that are accepted as legal by the defendant's own country) to support these claims. Without such a body of consistent and accepted practice, universal jurisdiction remains an academic aspiration rather than an established fact, and rightly so.

If international law really did permit each state to prosecute the leaders of all others, based on its own interpretation of international law, this would prompt a new kind of war, one fought in courtrooms around the globe. Courts, however, are poor instruments of international policy, and such a result would make normal international relations impossible. Defense Secretary Donald Rumsfeld recently said, for instance, with respect to the claims brought against American officials in Belgium, that if United States officials cannot travel to Brussels without the fear of politically motivated prosecution, then the United States would take its business (i.e., NATO headquarters) elsewhere.

In addition, when compared with criminal enforcement in national legal systems, international prosecutions are always second best. This is because all prosecutions are meant to accomplish at least two goals. The first is to punish the guilty. The second is to promote socially desirable results in the form of deterrence and an overall respect for the rule of law. In instances where the cases grow out of national traumas, such as civil war or repression, the reassurance of the citizenry, political reconciliation and a kind of national catharsis are also critical elements.

International prosecutions can achieve the first goal, punishing the guilty, but they are singularly ill-equipped to deliver on the others (a flaw shared by the International Criminal Court). Reconciliation and respect for law can be taught; they cannot be dictated. This is especially the case when such "international" prosecutions are undertaken by foreign judicial systems, with little or no connection to the perpetrators, victims or offenses, under the rubric of universal jurisdiction. Such proceedings are invariably decoupled from the political, social and economic context of the affected country, and may well be based on the political or foreign policy agenda of the prosecuting state. For all of these reasons, national prosecutions should remain the primary means of doing justice. Where they have failed, the focus should be on reforming the national system from within.

In Mr. Cavallo's case, Argentina did not fail. Rather, it made the difficult and distasteful choice to give immunity to many of the people who had terrorized the country during military rule. In return, Argentina made a peaceful return to civilian government and democracy, and avoided further military coups.

It is neither the right nor the place of the Spanish judiciary to deny the validity of Argentina's laws, any more than it is, say, Britain's right to correct perceived deficiencies in the American judicial system. Argentina is no longer a colony. It made a choice. Perhaps it chose badly. Perhaps it paid too high a price for democracy. (In fact, Argentina's new president, Néstor Kirchner, is seeking to have these amnesty laws overturned.) That, however, is for Argentina, not Judge Garzón or anybody else, to decide.

David B. Rivkin Jr. and Lee A. Casey are lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations.

[Source: The New York Times, July 22, 2003. Mike Kirkland is UPI's senior legal affairs correspondent. He has covered the Supreme Court, and other parts of the legal community, since 1993.]

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Este documento ha sido publicado el 03jul03 por el Equipo Nizkor y Derechos Human Rights