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| Author: | David B. Rivkin |
|---|
November 5, 2003
Council on Foreign Relations
David B. Rivkin, Jr.
Baker & Hostetler, LLP
September 15, 2003
I. Introduction
Unfortunately, in the post-Cold War era, genocide, ethnic cleansing, crimes against humanity and grave breaches of the laws of war remain all too common. Similarly, rogue regimes allow violators of accepted international norms to operate with impunity, and even provide aid and comfort to terrorist organizations. Our condemnation and rejection of this intolerable behavior is not in question; what is at issue is how we can best prevent these abuses and punish those responsible. An even more fundamental question is how we develop an international system in which this type of barbarous conduct becomes exceedingly rare and, eventually, nonexistent.
In answering this question, it is important to keep in mind that inculcating a culture of lawfulness can only be done in the context of fostering democracies and civil societies in which the rule of law is the norm. Moreover, in bringing about this much needed change, law has an important, but not the exclusive, role to play. Diplomacy, aid and technical assistance, economic sanctions, covert operations, and the use of force are other means of statecraft that have to be deployed in civilizing international relations. One of the more difficult questions, and the one on which disagreements abound, is how we utilize these various tools and resolve the inherent tensions between the legal and real politic imperatives so as to achieve a harmonious and balanced policy.
Even in the purely legal realm, consensus begins to break down when we come to the question of what legal institutions are best positioned to administer justice in cases involving serious violations of international law. Most of our European friends and virtually all of the international humanitarian NGO community strongly espouse the view that international tribunals, whether ad hoc ones like the ICTY or permanent ones like the ICC, offer the best venue for promoting the goals of justice and deterring future misconduct.
To the extent that national tribunals are considered to be worthwhile, these are usually third-country tribunals, prosecuting, under the principal of universal jurisdiction, somebody else’s citizens. Indeed, such European countries as Spain and Belgium have become notorious for seeking to use their courts to punish the officials of other, usually non-European countries. National level justice, in which a given state prosecutes its own citizens, or those individuals of whatever nationality, who committed crimes against its citizens, even when dispensed by civilian courts, is viewed as second-rate. Meanwhile, the institutions of military justice, including courts martial and military commissions, command no respect whatsoever.
II. International Justice Persisted
It is worth looking in somewhat greater detail at how the international institutions and domestic tribunals, operating under the universal jurisdiction flag, have been dispensing international justice.
A. Foreign Prosecutions
The Spanish experience with prosecutions of foreign officials is particularly instructive. For years, Spanish Judge Balthasar Garzon has worked to prosecute and punish members of the various military juntas who ruled, and terrorized, South America during the 1970s. In 1997, he tried to extradite former Chilean dictator Augusto Pinochet, then visiting Britain. More recently Judge Garzon attempted to “question” former Secretary of State Henry Kissinger about U.S. policy towards those regimes.
A few weeks ago, the Judge finally obtained custody (from Mexico) of a suspect, in the form of one of Ricardo Miguel Cavallo. Cavallo is a former Argentine military official, implicated in that country’s 1976-83 “Dirty War,” in which thousands were tortured and/or killed. Under Argentina’s amnesty laws, however, Cavallo cannot be punished. Indeed, the Judge has ordered Cavallo held without bond for fear that he will flee back to his own country, where he is immune from prosecution. Human rights activists have applauded Garzon’s actions and, doubtless, Cavallo richly deserves prosecution. The matter, however, is not so simple. The basis of Judge Garzon’s investigation is the theory of “universal jurisdiction,” which suggests that every nation state is entitled to prosecute and punish the officials of every other state for “international” offenses, even in the absence of any of the traditional bases for asserting jurisdiction.
Universal jurisdiction 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. Even then, it was not all that universal. Most of the prosecutions were brought by the authorities of a given state against the pirates who committed depredations against the ships and nationals of that state, an exercise that could have been amply supported by the more traditional bases of jurisdiction. In more recent years, however, universality has been asserted for an increasing number of human rights offenses, such as torture or war crimes, though there is little state 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.
Unconstrained reliance on universal jurisdiction is particularly intolerable for a country like the United States which, in the aftermath of September 11th, has no choice but to pursue an assertive foreign policy, backed up by a muscular defense strategy. This unique U.S. situation aside, if international law really did permit each state, based on its own interpretation of international law, to prosecute the leaders of all others this would prompt a new war of all against all, fought in courtrooms around the globe. Courts are poor instruments of international policy, and such a result would make normal international relations impossible.
The problem is compounded by the fact that, to put it mildly, most of the universal jurisdiction-based prosecutions have been heavily tilted towards the right-wing and nationalist lawbreakers, rather than such icons of the left as Castro or Arafat. Accusations are plentiful that American military and civilian officials have committed grave breaches of the laws of war, whether in the 1990 Gulf War, the 1999 Kosovo conflict, or the 2003 campaign in Iraq. Israeli officials probably outpace even the American ones in the frequency with which they drew condemnations. Meanwhile, despite the deplorable conduct of Russian troops in Chechnya, or the Chinese troops in Tibet, or the Indian troops in Kashmir, allegations that they have violated the laws of war are quite rare.
While the frequent politicization of universal jurisdiction-based prosecutions could perhaps be somehow mitigated, we are still left with the problem that, given the nature of all laws in general and international law in particular, international law can best be interpreted and applied, both for purposes of structuring one’s conduct and investigating/prosecuting specific violations, by a nation state, in accordance with its own constitutional and judicial processes. This “domestic” approach, to begin with, allows an interplay between enforcement actions and compliance-fostering institution-building and training. Inculcating better compliance is what law enforcement should be all about.
In addition, when compared with criminal enforcement in national legal systems, international prosecutions always come out second best. This is the case because all prosecutions are meant to accomplish at least two goals. The first is to punish the guilty. The second is to promote a range of socially desirable results, including deterrence of future offenses and fostering an overall respect for the rule of law. In instances where the cases grow out of profound national traumas, such as civil war or a period of repression, the reassurance of the citizenry, promotion of national/ethnic/political reconciliation, and fostering of national catharsis are also critical goals.
Although international prosecutions can perhaps achieve the first goal— punishing the guilty—they are singularly ill-equipped to deliver on the others. 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. Such proceedings are invariably decoupled from the political, social and economic context of the affected country, and may well be driven by 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.
Of course, in Cavallo’s case, Argentina did not fail. Rather, it made the difficult and distasteful choice to immunize many of the individuals who had terrorized the country during the period of military rule. In return, Argentina achieved 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, or to meddle in its legal affairs, any more than Great Britain has a right to correct perceived deficiencies in the American judicial system. Argentina is no longer a colony. It made a difficult choice. Perhaps it chose badly. Perhaps it paid too high a price for democracy. (In fact, Argentina’s new president, Nestor Kirchner, is seeking to have these amnesty laws overturned.) That, however, is for Argentina to decide.
Another key advantage of national level prosecutions is that they provide an appropriate context for the exercise of prosecutorial discretion. It is widely accepted that prosecutorial discretion is the sine que non of any civilized justice system. The essence of prosecutorial discretion is balancing the ability to obtain an indictment and conviction of a given person, who arguably has violated some law, with broader societal interests. At one level, it entails examining whether the alleged violation was willful and deliberate, whether the individual involved is a repeat offender, and whether “throwing the book” at him is the right thing to do. While it is not entirely implausible that an ICC or an ICTY prosecutor may be capable of exercising this form of prosecutorial discretion, the odds of this are not very good.
This reality has nothing to do with prosecutorial personnel staffing these international bodies – they can be the most honorable and the most decent individuals in the world - and has everything to do with institutional pressures and imperatives. The Framers of our Constitution would sadly chuckle at the presumption, oft-expressed by ICC supporters, that good persons can salvage flawed institutions. Our own experience with the independent counsel prosecutions shows what happens when even the most honorable individuals are put in a position where they staff a prosecutorial institution which is separate and distinct from the normal justice system and which exercises jurisdiction over a particular category of persons, i.e., senior government officials. This comparison is not far-fetched if we consider that prosecutors of the ICC and the ICTY see their reason d’etre as the prosecution of senior government officials of sovereign states who, in their view, have committed serious violations of international law and gotten away with it.
In any case, there is a lot more to prosecutorial discretion than these offender-specific deliberations. There are times when a prosecutor, while satisfied that a given individual has indeed broken the law, has concluded that the interests of the society as a whole would not be served by prosecuting this person. These decisions are sometimes made by the prosecutors themselves, sometimes by the senior officials of the executive branch, and sometimes by the legislatures. At times, the decision not to prosecute a given type of offense or a certain type of offender takes the form of a formal amnesty; other times they are less formal. What is significant is that all of these decisions require political accountability - lest they appear to be a mere cuddling of the bad guys - and cannot be exercised effectively outside of a context of a particular body polity. International institutions are inherently incapable of exercising this form of prosecutorial discretion.
Moreover, quite aside from prosecutorial discretion, there is always the basic issue - was the law broken? Sometimes, the answer to this question is blindly obvious and crystal clear. Other times, however, it is anything but that, and the prosecutorial function is then to weigh the equities carefully. For example, in the area of war crimes, a number of key jus in bello issues necessarily require the inherently subjective process of balancing military necessity and humanitarian goals. The outcome depends very much on who does this balancing. This point was candidly acknowledged in the report issued by the ICTY prosecutor, after completing the investigation of NATO’s Kosovo operation:
It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to non-combatants . . . .it is unlikely that [even] military commanders with different doctrinal backgrounds and differing degrees of combat experience or national military histories would always agree in close cases.
Here again, just as in the case of prosecutorial discretion, such balancing can be accomplished well only in the context of a particular body polity and preferably by institutions, such as courts martial, with a substantial degree of specialized military expertise.
International Prosecutions
Though international jurisdiction should be exercised only as a last resort, this is not to say that it has no legitimate role to play. Under certain circumstances, such as in Rwanda and the former Yugoslavia, involving a Hobbesian breakdown of law and order, where a domestic system of justice has effectively been rendered nonexistent, a tribunal created for limited purposes can bring order to an otherwise hopeless situation. The fact that such a tribunal is established pursuant to the U.N. Charter, which binds all of the U.N. members and which specifically endows the Security Council, when acting under Chapter VII authority, with plenary powers, provides legal legitimacy for this entire exercise. However, acknowledging that some form of international jurisdiction does have a role does not entail a license to invoke it broadly.
It is here that the ICC comes in, or, more precisely, the ICC’s troubling assertion that it has jurisdiction over nationals of non-signatory states. (To state the obvious, to the extent that states which are signatories to the Rome Statute have consented to the ICC’s jurisdiction, they have made a clear policy choice and are fully entitled to live with the consequences.) Leaving aside the legal issues bearing upon this extraordinary assertion of jurisdiction, the existence of an institution which functions as a permanent overseer for the national systems of justice is very troubling. Irrespective of how broadly or narrowly the ICC prosecutor and its judges would construe the principal of complementarity, there is no question that the court arrogates to itself the right to override the results of a given national prosecution or a national-level decision not to prosecute. This broad authority is in notable contrast to the view which, arguably, underlies the creation of the temporary ad hoc tribunals – international justice should step in only when there has been a wholesale systemic failure of a given body polity to render justice. The fact that the prosecutor or the judges in the Hague may not like the result of a particular national prosecution is not a sufficient basis to intervene.
Striking the Right Balance
It may be that some of the proponents of international justice, even if persuaded by the above arguments, may still stick to their guns, largely because they have a broader agenda. Some of them may even believe that international law enforcement, warts and all, is the engine that would help bring about a more equitable political and economic system on the global scale. There are, indeed, some precedents, most notably the EU, where modest incremental measures undertaken over a period of years have led first to economic, and then to political, integration. Whatever the merits of this approach may be – and the jury is still out on how the EU will cure its “democracy deficit” – it is quite certain that, for the foreseeable future, we are stuck with the world of nation states. Some of these states are democratic and law abiding, committed to the promotion of international stability and peace. Other countries are less democratic and less responsible in their external conduct. And some, of course, are rogue states, striving to destroy the current international system and impose, through whatever means necessary, their preferred models of social and political organization on the rest of the world.
In this international system, promotion of international justice, long-term, is best served by the maintenance of rules that enable responsible states to meet the threats and challenges to peace. Since democracies find resort to force to be the most difficult political decision, particularly when presented with less than clear-cut threats, the development of international legal institutions or rules that can be used to second-guess and even criminalize the decisions reached by democratic decision makers at the national level is not going to promote democracy or foster peace. This imperative helps underscore why the protection of sovereignty is not an archaic or pedantic goal, but the sine quo non of international stability in the twenty-first century.
One obvious implication of this fact is the much maligned concept of immunity of state officials, which was vigorously endorsed on February 2002, by the International Court of Justice (“ICJ”), in the case brought by Congo against Belgium. The context for the case was the Belgian indictment, on the universal jurisdiction theory, of the Congolese foreign minister. The ICJ ruled that, whatever the merits of the accusations against the foreign minister might have been, legal prosecutions by one state of the senior officials of another would greatly undermine the current international system and were not supportable by the existing body of international law. It is the responsibility of sovereign states to prosecute their own senior offenders; any delegations of this responsibility to other countries or international bodies must be voluntary and based on state consent. It is worth noting here that the U.S. has been quite consistent in its championing of the principle of immunity of senior government officials. Just recently, the Administration announced an indictment of several mid-level Cuban air force officers, responsible for the 1996 shoot-down, over international waters, of American civilian planes carrying U.S. nationals. Yet, it did not indict either the Cuban dictator Fidel Castro – even though he publicly bragged that he personally ordered the destruction of these planes – nor his brother, Raul, the defense minister.
The spirited rejoinder to this conclusion is likely to be that accepting these principles would bring immunity for the world’s worst rogues and malefactors. However, the advocates of international justice rely on a false premise— that international justice leads to more democracy— and a false choice— either international justice or impunity. Significantly, no dictator has ever been removed as a result of international justice. To the extent that any dictator has been brought to justice, this was accomplished as a result of regime change, whether effected through an internal revolution, a la Ceausescu, an internal political movement supported by outside forces, a la Milosevic, or through the use of force by other countries, a la Saddam Hussein.
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