Universal jurisdiction raises as many problems as it solves

While the upholding of the sentence against former Liberian president Charles Taylor should be applauded, the investigation of war crimes is still entirely reserved for political losers.

The upholding of a 50-year sentence against former Liberian president Charles Taylor by the Special Court for Sierra Leone once again calls attention to the virtues – and the pitfalls – of the evolving doctrine of universal jurisdiction.

Taylor’s sentence is undoubtedly a victory for justice, and another important step towards the creation of a world order in which war criminals are systematically held accountable. In that sense, it is to be unequivocally celebrated.

However, universal jurisdiction must not only overcome a series of extremely complicated legal and political hurdles before it becomes a genuinely equitable and effective system of international law. It must also contend with even more knotty moral realities – which are usually ignored in the academic and theoretical conversation on the subject – and multiple examples wherein the greater good may well be served by not pursuing even heinous war criminals for various ethically persuasive reasons.

Universal jurisdiction arises out of the post-Second World War environment, the first real applications of it being trials by the victors against Nazi and Japanese officials, among others. They created, in effect, a set of ex post facto crimes that were morally unimpeachable but raised significant legal problems. The magnitude of the evil, however, properly offset such qualms and new international legal norms were established.

Another case was the Israeli abduction, trial, conviction and execution of Adolf Eichmann. Even though his crimes were not committed in Israel – a country that had not been established at the time – few were genuinely bothered by the technical legal problems because of the magnitude of the genocide and his proven culpability.

International justice gained momentum following the end of the Cold War. The Statute of Rome was adopted in 1998, and its enforcement arm, the International Criminal Court (ICC), began operations in 2002. The ICC has launched full investigations into eight major cases, tellingly all of them were in Africa. Similar prosecutions have also been promoted by the International Criminal Tribunal for the former Yugoslavia, and other post-Cold War ad hoc legal bodies.

A crucial turning point was the 1998 effort by Spanish and British magistrates to indict former Chilean dictator Augusto Pinochet. The case against Pinochet fell apart politically, legally and due to his ill health. But the effort to call him to account seemed to inaugurate an era in which international accountability for crimes committed by senior officials within a sovereign state became a genuine possibility.

Both Henry Kissinger (a potential defendant himself) and the then-Chilean government of Eduardo Frei, objected this would interfere with the process of national reconciliation. Pinochet was eventually charged in Chile with tax fraud and passport forgery, but nothing directly connected with human rights abuses. He died before the cases advanced.

So one key problem with the prosecution of such cases in the present context is that it can seriously interfere with, if not derail, the end of a dictatorship or a civil conflict. If despots can flee to safe havens, as so many did in the 20th century thereby probably saving countless additional lives, how does that affect the moral calculation?

The dead can only receive a simulacrum of justice through the punishment of the guilty. The living, however, can receive the actual justice of a reprieve from forthcoming torture and murder.

A good example of this kind of moral and political conundrum is the ICC indictment against Sudanese President Omar Bashir on seven counts of war crimes and crimes against humanity, pursuant to a resolution by the United Nations Security Council. Yet there has been no attempt to apprehend him, particularly in the context of the end of the Sudanese civil war and the creation of the Republic of South Sudan. At the inauguration ceremony for the UN’s newest member state, South Sudan, Bashir stood alongside numerous dignitaries, including UN secretary general, Ban Ki-moon.

Which was more important: the end of the war and the creation of South Sudan, or justice for Bashir’s victims? The international community determined this moral quandary decisively in favour of the former. The same calculation applies to “escape hatches” for dictators fleeing to friendly havens, thereby bringing conflicts to swifter conclusions. International justice must deal with the fact that it can provide an incentive for butchers to cling to power or prolong conflicts.

This massive pitfall might be ameliorated by resolving the other great failing of present-day universal jurisdiction: the only parties that end up actually in the dock are either those that have lost conflicts or, who, like former Serbian president Slobodan Milosevic, have been overthrown and handed over to international prosecutors by their own countries. As the Bashir case demonstrates, those in power remain entirely beyond the reach of this kind of law.

Also, numerous important states reject the authority of the ICC over its citizens, including the United States, India, China, Israel, Indonesia and of course Sudan. The UN Security Council can authorise ICC investigations regarding non-signatories. But this is rare, and the case of Bashir has proven it ineffectual against real political power.

While the sentencing of Taylor is to be celebrated, the investigation of such crimes is still entirely reserved for political losers. And, in some cases, its application would do more harm than good.

As long as that is the case, it will be merely a shadow of law and a hint of the global accountability that must eventually be developed.

Hussein Ibish is a senior fellow at the American Task Force on Palestine, a columnist for Now Media and blogs at www.ibishblog.com

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