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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Functions of Constitutions

In a response to a story that I blogged about yesterday, New Yorker Magazine Senior Editor, Hendrik Hertzberg, takes issue with the claim that the US Constitution has become increasingly irrelevant as a model for constitution-builders worldwide. Hertzberg writes:

The problem is that the study focusses almost exclusively on rights—the individual and civil rights that are specified in written constitutions. But it almost totally ignores structures—the mundane mechanisms of governing, the nuts and bolts, which is mainly what constitutions, written and unwritten, are about, and which determine not only whether rights are truly guaranteed but also whether a government can truly function in accordance with democratic norms. Or function at all with any semblance of efficiency, effectiveness, and accountability.

In Chapter 6 of the Dyck text, we learn that there are five main functions of any constitution, the first one of which “to define the structure of major institutions of government.” Other major functions are:

  • To divide powers and responsibilities among the various institutions of government
  • To regulate relations between the citizen and the state (this is where rights–civil, legal, political, sometimes economic, social and cultural–are enumerated)
  • To serve as a political symbol
  • To specify a method for amending the constitution

What does the study in question say about whether the US Constitution is being used as a template in these other areas? You’ll have to wait until the study is published in June of this year to find out.

 

 

Countries no longer look to US Constitution as Template

Via the New York Times, we learn of the waning popularity of the US constitution as a guide for constitution-makers worldwide. A study in the New York University Law Review, which will be published in June, shows that whereas in 1987 a vast majority of the world’s countries had “written charters modeled directly or indirectly on the U.S. version”, today the ” U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere,” According to recently retired US Supreme Court justice, Ruth Bader Ginsburg [it was Sandra Day O’ Connor, of course, who recently retired from the SCOTUS], who was interviewed on Egyptian television last week (see video below), had this to say:

“I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

Two reasons that this many constitutional scholars agree with Bader Ginsburg is that i) the US constitution guarantees relatively few rights, and particularly guarantees none of the “second-” and “third-generation” rights, such as social and economic rights, and group-based cultural rights, and ii) the US constitution is notoriously difficult to amend. It is, in fact, the most difficult to amend of any constitution today. The Times wryly notes that Yugoslavia used to hold that distinction. Yugoslavia, as we know, no longer exists today.

The US constitution, however, was plenty good enough for Captain Kirk!

Support for Capital Punishment

On Thursday in POLI 1100, a general discussion about the distinctions between democratic and non-democratic regimes focused on the use(s) of violence by governments as a means of control. This led to a discussion of the use of, and support for, the death penalty. As many of my students knew, the death penalty is not used in Canada or Europe (with the exception of Belarus) but is used in the United States. Most of the class, however, was surprised to learn that, despite the differences in policy, until quite recently a majority of both Canadians and Americans supported the death penalty. The graphic below shows the supports of a Gallup-Ipsos survey carried out in 2004, in which Canadians just barely oppose the death penalty (although, as you can see, it is not a majority), while Great Britons (55%) and US Americans (64%) both have majorities supporting the death penalty.

Although support for capital punishment is decreasing in many countries, in many European countries a majority of the population still is in favour of the death penalty for those convicted of murder. What about Japan? In a poll released in February 2010, a record 85% of Japanese supported the death penalty!

What do you think about these results? Are they as you expected? What does this say about the political culture of the countries in question?

Constitutions of the World–Source/Archive

Here is a great source of political constitutions from states around the world, provided to the public by the University of Richmond Law School.

From the website:

This database offers constitutions, charters, amendments, and other related documents. Nations of the world are linked to their constitutional text posted somewhere on the Internet.