Universal Jurisdiction

Today in POLI 1140, we discussed and debated the topic of universal jurisdiction. What is universal jurisdiction? Universal jurisdiction is

a legal concept that permits states to claim legal authority beyond their national territory for the purpose of punishing a particularly heinous criminal that violates the laws of all states or protecting human rights. Mingst and Arreguin-Toft (222)

The most celebrated case in this relatively new area of international jurisprudence is that of former Chilean military dictator Gen. Augusto Pinochet, about whom the New York Times editorial board wrote in 2004:

Thanks to a Chilean court ruling on Monday, the day at last seems to be approaching when Gen. Augusto Pinochet, the former military dictator, will go on trial for crimes committed decades ago. General Pinochet is now a very old man, but normal feelings of sympathy would be misplaced. This trial should have begun years ago.

The long delay is entirely the result of General Pinochet’s effort to evade legal accountability. The charges concern one of the most chilling crimes of his nearly 17-year rule, an international conspiracy to hunt down and murder opponents of Latin America’s military dictatorships in the 1970’s. That plot got under way in the days when Henry Kissinger was running American foreign policy for Richard Nixon, and the the United States did too little to discourage it, even though one of the resulting murders was carried out on the streets of Washington.

Gen.Pinochet would die (at age 91) before facing his accusers.

What has prompted the recent emergence, and codification into both international–for example, Article 49 of the First Geneva Convention–and domestic–Canada’s Crimes Against Humanity and War Crimes Act–law, of the concept of universal jurisdiction? According to one of the world’s leading human rights NGOs–Amnesty International–it is because

As genocide, crimes against humanity, war crimes, torture, extrajudicial executions and enforced disappearances are crimes under international law, all states should investigate and prosecute the crimes before their national courts.

Recognizing that impunity exists mainly when the national authorities of countries affected by the crimes fail to act, it is important that the national criminal and civil justice systems of all countries can step in to prosecute the crimes on behalf of the international community and award reparations to victims.

Of course, there are many detractors to the use of the concept of universal jurisdiction. The aforementioned Henry Kissinger has argued the concept not only risks “judicial tyranny” and cases like that of Gen. Pinochet set a “dangerous precedent” (though Kissinger is certainly less than a disinterested figure in this case!), but that

The danger [in pushing for universal jurisdiction] lies in pushing the effort to extremes that risk substituting the tyranny of judges for that of governments; historically, the dictatorship of the virtuous has often led to inquisitions and even witch-hunts.

In class, we viewed the first ten minutes of the video below in which advocates and opponents of the concept of universal jurisdiction debated the relative merits of the idea with respect to the potential arrest of Israeli diplomats on visits to Great Britain for alleged war crimes in Israel/the Occupied Territories.

In the video, Professor Dan Scheuftan, of the University of Haifa notes

[although] International Relations is political…[the increasing use of universal jurisdiction will] politicize the legal system as well. again by radicals, usually from the extreme left using it [universal jurisdiction] as a propaganda ploy.

What do you think? Is the concept a valid tool in the fight to bring perpetrators of heinous human rights abuses and war crimes to justice, or is it more likely to be abused (than used) in the politicization and propagandization (is that a word?) of international justice?

 

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