One of the criticisms on the Left of President George W. Bush is that he exceeded his sovereign authority to impose his moral and political will on other countries. We find out now that the real criticism is not that he exceeded his authority, but that he did not do so in the pursuit of Left-wing goals.
For example, a Left-wing Spanish judge (who earned his degree while serving time for his involvement in terrorism) is seeking to indict American attorneys who advised President Bush. By extending his authority outside Spanish jurisdiction, this judge is invoking the controversial doctrine of Universal Jurisdiction. This doctrine holds that individual states can claim criminal jurisdiction outside of the state’s sovereignty, independent of the relationship of the crime to the country seeking prosecution. Spanish Judge Baltasar Garzón is attempting to indict Bush’s advisers, including Attorney General Antonio Gonzalez, Douglas Feith, a former under Secretary of Defense, and Justice Department attorney John Yoo. Such an indictment would be in violation of the sovereignty guaranteed by the signatories of the United Nations Charter.
Universal jurisdiction was meant to apply to situations where there was no sovereign authority to enforce the law such as in piracy or the occupation of a country after a war where there is no other competent authority. The principle of sovereignty guaranteed in the UN charter prohibits the usurpation of sovereign authority simply because another country disapproves of the local jurisprudence.
There are some who argue that despite the legal technicalities, the need to pursue some individuals who commit especially heinous crimes is so great that it permits the use of means not normally accepted. How different is this argument that enhanced measures can be used to interrogate individuals when the lives of innocents are involved?
The Left does not really seek the application of international law, but its selective use to pursue political opponents. Some Spaniards like to specialize in the use of extraterritorial legal exploits in pursuing former Chilean right-wing dictator Pinochet, or Israeli officials, or Americans. There do not seem to be any “universal jurisdiction” indictments applied against terrorist leader Osama Bin Laden. This may or may not be related to possibility that, Spanish lawyers involved in going after Bin Laden might find their personal safety threatened. The 2004 Madrid bombings illustrated how it is possible to intimidate the Spanish public. Leaving aside the questions of legal jurisdiction, for a court to maintain moral authority it must avoid the reality and appearance of using its power for politically-motivated prosecutions. The Spanish fail this test.
When the US liberated Iraq it did so under the legal auspices of the original authorization by the United Nations to remove the Iraqis from Kuwait. The armistice that halted the hostilities as the US pursued Iraqi forces was based on certain agreements Iraq agreed to. These agreements were violated and the US had the clear authority to resume hostilities.
Would the Left (who by the way did not indict Saddam Hussein) have been happy if the United States found a federal judge somewhere to issue an indictment against Hussein. Then US could have then have called the Iraq operation as law enforcement effort? Would that have pleased the proponents of the cavalier use universal jurisdiction? Would the Left be pleased if a Conservative country issued indictments against other judges in other countries who ruled in favor of abortion rights. Would the Left be happy if the US issued indictments against Chinese officials for actions against Tibetans. Would the Left ever seek an indictment against President Bill Clinton who boasted that he ordered the assassination of Osama Bin Laden without an judicial authority.
Perhaps the most pernicious problem with universal jurisdiction is that it may hinder important diplomatic efforts. Say for example, the international community can persuade a particular tyrant to step down and allow a democratic government to take over in exchange for free passage and asylum in a third country. If that particular tyrant is concerned about universal jurisdiction, he or she might calculate their self interest rests with toughing it out in their own country.
One can apply diplomatic pressure and moral suasion to deal with issues between sovereign countries. Indeed, if a country believes it is morally necessary it can impose sanctions of some sort against other countries. To use universal jurisdiction is to allow tyranny by small number of judges who choose to extend their jurisdiction beyond that mandated by international law.
This entry was posted on Sunday, April 5th, 2009 at 8:38 am and is filed under Law, Politics, Social Commentary. You can follow any responses to this entry through the RSS 2.0 feed.
You can leave a response, or trackback from your own site.
Universal Jurisdiction as Universal Tyranny
One of the criticisms on the Left of President George W. Bush is that he exceeded his sovereign authority to impose his moral and political will on other countries. We find out now that the real criticism is not that he exceeded his authority, but that he did not do so in the pursuit of Left-wing goals.
For example, a Left-wing Spanish judge (who earned his degree while serving time for his involvement in terrorism) is seeking to indict American attorneys who advised President Bush. By extending his authority outside Spanish jurisdiction, this judge is invoking the controversial doctrine of Universal Jurisdiction. This doctrine holds that individual states can claim criminal jurisdiction outside of the state’s sovereignty, independent of the relationship of the crime to the country seeking prosecution. Spanish Judge Baltasar Garzón is attempting to indict Bush’s advisers, including Attorney General Antonio Gonzalez, Douglas Feith, a former under Secretary of Defense, and Justice Department attorney John Yoo. Such an indictment would be in violation of the sovereignty guaranteed by the signatories of the United Nations Charter.
Universal jurisdiction was meant to apply to situations where there was no sovereign authority to enforce the law such as in piracy or the occupation of a country after a war where there is no other competent authority. The principle of sovereignty guaranteed in the UN charter prohibits the usurpation of sovereign authority simply because another country disapproves of the local jurisprudence.
There are some who argue that despite the legal technicalities, the need to pursue some individuals who commit especially heinous crimes is so great that it permits the use of means not normally accepted. How different is this argument that enhanced measures can be used to interrogate individuals when the lives of innocents are involved?
The Left does not really seek the application of international law, but its selective use to pursue political opponents. Some Spaniards like to specialize in the use of extraterritorial legal exploits in pursuing former Chilean right-wing dictator Pinochet, or Israeli officials, or Americans. There do not seem to be any “universal jurisdiction” indictments applied against terrorist leader Osama Bin Laden. This may or may not be related to possibility that, Spanish lawyers involved in going after Bin Laden might find their personal safety threatened. The 2004 Madrid bombings illustrated how it is possible to intimidate the Spanish public. Leaving aside the questions of legal jurisdiction, for a court to maintain moral authority it must avoid the reality and appearance of using its power for politically-motivated prosecutions. The Spanish fail this test.
When the US liberated Iraq it did so under the legal auspices of the original authorization by the United Nations to remove the Iraqis from Kuwait. The armistice that halted the hostilities as the US pursued Iraqi forces was based on certain agreements Iraq agreed to. These agreements were violated and the US had the clear authority to resume hostilities.
Would the Left (who by the way did not indict Saddam Hussein) have been happy if the United States found a federal judge somewhere to issue an indictment against Hussein. Then US could have then have called the Iraq operation as law enforcement effort? Would that have pleased the proponents of the cavalier use universal jurisdiction? Would the Left be pleased if a Conservative country issued indictments against other judges in other countries who ruled in favor of abortion rights. Would the Left be happy if the US issued indictments against Chinese officials for actions against Tibetans. Would the Left ever seek an indictment against President Bill Clinton who boasted that he ordered the assassination of Osama Bin Laden without an judicial authority.
Perhaps the most pernicious problem with universal jurisdiction is that it may hinder important diplomatic efforts. Say for example, the international community can persuade a particular tyrant to step down and allow a democratic government to take over in exchange for free passage and asylum in a third country. If that particular tyrant is concerned about universal jurisdiction, he or she might calculate their self interest rests with toughing it out in their own country.
One can apply diplomatic pressure and moral suasion to deal with issues between sovereign countries. Indeed, if a country believes it is morally necessary it can impose sanctions of some sort against other countries. To use universal jurisdiction is to allow tyranny by small number of judges who choose to extend their jurisdiction beyond that mandated by international law.
This entry was posted on Sunday, April 5th, 2009 at 8:38 am and is filed under Law, Politics, Social Commentary. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.