The time is right to revive the concept of “universal jurisdiction” — the idea that a person, whatever their nationality, can be called to account before the court of any civilized country for grave international crimes, argues Inder Comar.
By Inder Comar
In hindsight, it is almost too extraordinary: the leader of a Western-friendly government responsible for the deaths of thousands, and the torture of tens of thousands, arrested and brought to account for his crimes before a court and a judge.
But this is exactly what happened in 1998, when Judge Baltasar Garzon, a Spanish magistrate, issued an arrest warrant for the former dictator of Chile, Augusto Pinochet, while Pinochet was in the United Kingdom seeking medical treatment.
What happened next was a series of hearings that became known as The Pinochet Case, and which ended with a stunning victory for human rights: Britain’s House of Lords deciding in 1999 that the arrest of Pinochet could proceed on the basis that his alleged international crimes violated human rights norms.
Pinochet received a reprieve from then British Home Secretary Jack Straw, who decided that Pinochet was too ill to stand trial, and permitted Pinochet to leave and go back to Chile.
But the moment could not be undone: an authoritarian leader who had committed terrible crimes was forced to account for them—somewhere.
Fast-forward two years to the events of 9/11.
The Excuse of Fighting Terrorism
Governments around the world, including the American government, have openly and earnestly used the excuse of terrorism to tear down an international human rights mandate that was growing of its own accord. It had produced an unthinkable amount of accountability over Pinochet—a former head of state who had been sponsored and defended by powerful Western governments despite his record of torture and murder.
In the so-called War on Terror, the global prohibition against torture, codified in the Convention Against Torture, was dismantled in favor of renditions, black sites, and cruel and inhuman treatment against people who were never accused of any crime, or someone like Khalid al Masri, a German national, who was taken into captivity and tortured (al Masri was, among other things, drugged and sodomized), but then let go because they had been kidnapped by the CIA by mistake. The European Court of Human Rights confirmed these findings in 2012.
Similarly, the global prohibition against indefinite detention, codified since at least Magna Carta, was discarded in favor of the legal black hole at Guantanamo Bay. Western governments did not just attack critical human rights—they abandoned them in their entirety. And not a single government leader has been called to account for the destruction of these inalienable human rights protections.
The time is right to revive the concept of “universal jurisdiction” — the idea that a person, whatever their nationality, can be called to account before the court of any civilized country for grave international crimes.
Enemies of Civilization
The Romans had an expression for those who had committed terrible offenses: hostis humani generis, or “enemies of civilization.” Modern law talks of pirates the same way, and most countries (including the U.S.) permit a type of universal jurisdiction over those who commit piracy.
But it is up to today’s lawyers and judges to extend this concept beyond pirates—to torturers, illegal aggressors, and war criminals, wherever they may be located.
Impunity over international crimes must be abolished if we are ever to live in a civilized, peaceful world. A world where every leader, of every nation, remains afraid of having to defend their international actions with a lawyer, before a judge.
If The Pinochet Case seems buried in the past, there is a reason for that. The powerful want the world to forget that not too long ago, a brave judge, empowered by brave victims, found a legal doctrine that was compelling enough to force courts in the Western world to hold a once-favored dictator to account for his crimes.
It opened the imagination to a world in which law could produce accountability over international crimes — and where law could theoretically prevent such crimes from taking place in the future. Every day people bore witness to a court investigating the conduct of a Western-backed dictator. And there was a real possibility of that dictator going to jail.
We should not forget The Pinochet Case, or the idea of universal jurisdiction. Lawyers and judges can act as agents of profound social change.
Think of the way the world would change if a brave set of victims, lawyers and judges opened investigations into drone warfare, the Iraq War, or the destruction of Yemen.
Think of the way the world would change if those victims, lawyers and judges could show how law could act as a civilizing, pacifying force—not simply a tool to be held against the weak, but a positive force for good that could hold and sustain civilization itself.
Judge Baltasar Garzon was removed from his judgeship in 2010, and today, he acts as a legal advisor to Julian Assange. Pinochet, upon his return to Chile, was eventually stripped of his immunity and charged with a variety of crimes. Pinochet died soon after his indictments, and before he could feel the scrutiny that comes from honest, civilizing law.
But it is not too late for others. It is not too late for law to command the powerful, wherever they may be, instead of the powerful commanding the law.
This article first appeared on Inder Comar’s blog
Inder Comar is the executive director of Just Atonement Inc., a legal non-profit dedicated to building peace and sustainability, and the Managing Partner of Comar LLP, a private law firm working in technology. He is a recognized expert on the crime of aggression, the legality of the Iraq War, and international human rights. He holds a law degree from the New York University School of Law, a Master of Arts degree from Stanford University and Bachelor of Arts degrees from Stanford University. His Twitter handle is @InderComar.
Atrocious terrible lethal genocidal idea.
It will strongly encourage bad leaders to stay in power forever. When bad leaders can pay for asylum in other corrupt countries, the leaders can be persuaded to leave and allow a better leader or a military coup to take over. If bad leaders know that they will be arrested and killed as soon as they let go of total control, they will hold on to total control forever.
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One would need to install mechanisms to reduce the risk that it could be used politically. E.g. giving equal influence to poor countries, or institutions that are independent from governments and political influence. Any government or political actor (including media institutions!) who commit actions that are listed as war crimes or crimes against humanity, could be charged and prosecuted. In the Syria case, one would probably see leading politicians in the attacking trio, along with their accomplices in a number of Western countries, as well as people in intelligence agencies, the military and the press who are promoting aggression and acts of war crimes.
Please correct me if I am wrong; I believe many high ranking US officials already choose not to travel outside the US fearing they might be arrested for crimes against peace and humanity as well as war crimes.
Pinochet was a psychopath. Supported and looked up to by Margret Thatcher. Given a get out of jail free card by Jack Straw who was also instrumental in the decision, with Tony Blare, to take us to war in Iraq..Murderous man with murderous backers. When will we ever learn. It’s gets worse by the day.
Sam F very well lays out the actual legal routes that exist, which never are followed because of corruption, as he well explains. The corruption is so widespread that it has become embedded in this governmental system worldwide and who bothers to challenge it will be removed, as Judge Garzon was. Right now we are witnessing populist movements everywhere because people are sick of the chaos created by corrupt governments.
That old expression “a fish rots from the head down”, which apparently is Turkish in origin.
I’ll believe it when we see Dick Cheney and John Bolton in the dock, instead of in power.
The Powers fear the lion of human rights Balthazar Garçon.
We need to see a return to international law, which was established after WWII for precisely the reason illustrated by the strike on Syria was not approved by the UN Security Council, nor was Syria threatening the United States, the UK or France.The guilty parties did not even wait for the investigation of the OPCW to make its finding before going to war. Of importance it that while German Chancellor Merkel would not directly participate, she approved the military strike , even as a Bundestag report has classified it as contrary to international law.
The scientific research service of the Bundestag has classified the German-supported military strike on the Middle Eastern country as illegal.
“The use of military force against a state to punish the violation of an international convention by this state, is a violation of the international legal prohibition on violence,” it stated in an eleven-page report, which was commissioned by several political parties as well as the German press agency.It goes on to say that these actions are replacing legality with subjective moral legitimacy. Such actions, which have become commonplace during in the past two US. administrations threaten a return to gunboat diplomacy, and the law of the jungle based on the theory that “might makes right.” It is important to note that current German law for, example, prohibits wars of aggression under penalty of life imprisonment. Mrs.Merkel, et.al. take note This needs to become an issue of controversy in the UN and its related bodies, before such lawlessness become the norm.
The “court of any civilized country”. How is “civilized” defined? Who decides whether a country is “civilized” or not? Can the author name a country which accepts that it is not “civilized”?
Universal jurisdiction does not need to be revived; it exists. Your article seems remarkably US-centred, which probably explains why you think it does not exist, as the US is an outlaw state, guilty of many, many, many crimes which are subject to universal jurisdiction.
Plato asks – can virtue be taught? Can the wise become our rulers? History awaits our answer. The time is short now.
Of the writing of laws there is no end, and the more lawyers, the more crimes are committed. As virtue declines, laws try to substitute, police coerce, prisons proliferate, society deteriorates. Where can ethics be found, if not within ourselves?
I have often thought, “what was the purpose of the Nuremberg trials if they were only a one time affair?”
Any judge in most civilized countries can in principle order foreign arrest of war criminals under bilateral enforcement treaties, but activist judges would have short careers among the corrupt stooges of the US dictatorship of the rich. The courageous Judge Garzon of Spain was able to do so within the EU, but was removed.
Non-US assertion of universal jurisdiction of war criminals should be done by a state
1. Large enough to ignore US economic and political retaliations and military threats;
2. Able to renounce contrary obligations for defense or cooperation with the US;
3. Protected militarily by Russia or China;
4. Within the EU or NATO, it would need economic and military independence.
Arrest would be harder by China or Russia, so the question is whether economic sanctions are worth the publicity gain of prosecuting war crime proxies of the US, which would likely stage prosecutions of falsely accused opposing proxies.
Domestic politics and its manipulation by mass media dictatorships and US psyops are a factor. Brazil or India might lose US aid and face sanctions and psyops. Australia or NZ may feel threatened by China. Iran would be under threat of US/Israel attack. Turkey would face complications of shifting defense alliances.
Yes, within the US, a “brave set of victims, lawyers and judges” could open investigations into “torturers, illegal aggressors, and war criminals” and “drone warfare, the Iraq War, or the destruction of Yemen.” Journalists should report their work and the subversion by the US govt and DemReps, but few read such things. They would need:
1. A sympathetic and brave judge, able to survive within the corrupt federal judiciary;
2. Ability to investigate without federal agencies FBI, HSI (Homeland), and IRS;
3. Deniable means to use State dept diplomatic channels for foreign arrest requests;
4. Ability to face extreme social and career pressure from corrupt DemRep agents.
Practically this might be limited to prosecutions convenient to US politicians.
Another route is the largely-symbolic prosecution of the US itself within the US, which is possible under RICO (Racketeering Influenced and Corrupt Orgs act) under civil (vs. criminal) law (“civil RICO”) for violation of constitutional rights. Of course the US fights this because the federal judiciary are all traitors working for the dictatorship of the rich, who simply deny that the Tucker Act (1887 creating the Court of Federal Claims CFC) says what it says, giving up sovereign immunity to correct wrongs done to citizens. The plaintiff needs to be a US citizen injured by a US war crime.
And incidentally, the missing ingredient is a brave and honest federal judge. There are about 900 federal judges, and I have known about 30-40 well enough to judge their honesty, and not one was not completely corrupt. But if anyone knows one who is honest, which would require them to be brave, please let me know.
The reason that US judges are neither brave nor honest is that they are appointed entirely by corrupt politicians.
The politicians are chosen by bribes of the rich, and the judges and others they appoint serve only the rich.
So one could only prosecute war criminals who persecuted the rich., when in fact they usually serve the rich.
None of this will happen so long as you have an apathetic public. The biggest threat to the status quo is an economic crash that wipes out pensions and savings. When (not if) that happens the apathy will be gone.
A crash will remove much public apathy. But the general public is not involved in these prosecutions.
What you are hoping for is public support to aid these prosecutions. This will happen when SHTF (unless they can start a war as distraction).
Public support would be nice but would have to be massive to aid the prosecution.
When the people are robbed of their pensions, savings, homes and jobs, they will demand blood. That is the nature of the beast. If they can’t get satisfaction/revenge through the system they will start shooting the politicians and anyone who tries to protect them. Faced with that choice the politicians will have to bend to the will of the people. All is not lost yet, Sam, but we have to go down the drain first. :)
This is extremely dangerous because it makes it possible for one country to go after the leader of another country for purely political reasons. And it is inevitable that the richer and more powerful countries will make use of this tool.
Could Vietnam punish LBJ for defoliating its forests? Could pigs fly?
On the other hand, the US could easily go after the leader of another country for SOME sin, real or invented, big or small. So NO No and NO.. This is a method for the powerful countries to become even more powerful and claim legal justification.
Pinochet was not forced to account for his crimes anytime anywhere. Big fan Margaret Thatcher saw to that.
Somewhere Lao Tzu says that when laws increase, crime in the kingdom also increases. The point is that when morality is at a low ebb, the increase in the number of laws, only provides the criminals more tools to use. Basic decline in morality is our problem, not a lack of laws. Look at the outrageous tax laws that run to thousands of pages – the better to screw you my dear.
Actually, the decline of the West comes from the lack of a prevalent ideology, based on which the working poor happily accept their servitude, because they have hope. Feel free to complete the thought.
Quote from the article:
“Lawyers and judges can act as agents of profound social change.”
Really, shouldn’t the lawyers and judges follow the court of law, instead of dictating the social change?
The International Criminal Court (ICC) already has plenty of statues on the books to follow.
The Statute, as amended, defines the crime of aggression as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” The Statute defines an “act of aggression” as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” The article also contains a list of seven acts of aggression, which are identical to those in United Nations General Assembly Resolution 3314 of 1974 and include the following acts when committed by one state against another state:
Invasion or attack by armed forces against territory
Military occupation of territory
Annexation of territory
Bombardment against territory
Use of any weapons against territory
Blockade of ports or coasts
Attack on the land, sea, or air forces or marine and air fleets
The use of armed forces which are within the territory of another state by agreement, but in contravention of the conditions of the agreement
Allowing territory to be used by another state to perpetrate an act of aggression against a third state
Sending armed bands, groups, irregulars, or mercenaries to carry out acts of armed force
The Western countries and Israel are guilty, based on the ICC statues. Yet, there are no ICC action on the horizon for holding them responsible for recent events, such as the US, UK and FR attacking Syria. The US also has a military base in Syria and so does Russia and Iran. The US had not been invited by the current and UN recognized, legitimate Syrian government, while the other other two had been.
And now, you suggest establishing yet an other, non-functioning “Universal Jurisdiction” that will bring social changes? You’ve got to be kidding….
The US refuses to sign the Treaty of Rome to submit to the ICC, and even has a law to militarily attack the ICC if its citizens are prosecuted, so the article shows another path used by judge Garzon until he was dismissed. Apparently as long as the war criminal does not serve the US it does not care. Please see my notes above.
Yes, thank you for pointing out this crucial UN Resolution 3314, from 1974. The law exists, in this embodiment of th UN Charter. We need to have this discussion and that of international law, both in and out of the UN. The US, as well as the UK, and France are founding members of the UN, and of its Security Council. Time to start honoring that.
Well stated Al Pinto. It is unfortunate when activists from the legal profession posture like this in a seemingly enlightened way.
If you are a “professor” of law, why not explain why you think legal activists are merely “posturing.”
Let us know where you are professor of law, and what are your alternative actions.
Universal Jurisdiction could be good, but beware of unintended consequences. corrupt judges could go after people for political reasons, try to prosecute politicians for excessive taxation or some such. Still, it would far better than the ICC which is an utter failure at doing anything but prosecuting black politicians from Africa, while the Zionists and others slaughter innocents with impunity.
Well where was the Spanish judge or any other half decent judge when Tony Blair and George Bush were on rampage of murder and destruction. Pinochet was no angel, but compared with these two he was a veritable saint !
What exactly is the definition of ‘any civilized country’ ?
Personally, I find the idea naïve. It simply allows more room for corruption by those who want the new world order. Calling the Hague a good institution sounds naïve too.
I don’t think this is a good idea at all.
Silly me, if it was a good institution war criminal, Tony Blair, would have been one of its more notorious accused person.
Politicians, including the US President are puppets (well, Trump was an outsider, but he learnt that fast).
Democracy is a racket in which the rich pay for their puppets to get elected, while giving the illusion to the destitute masses that they have a choice.
Elections resemble the case when a streetwalker is allowed to elect her pimp. No matter what, she will get screwed.
Please see my comment above on methods less feasible. Any ideas may be useful.
Well the venue for this is already in existence. Ever hear of the Hague? But when war criminals and various other evil people run virtually every nation in the world, as well as the UN, who is left to file indictments? And should some honorable person in position to do such a thing moves ahead with it, all that needs to be done is stage a false flag and make him/her the devil in the flesh (Assad comes to mind).
Joel, dear boy, they could always paint some fantasy chemical weapon on the door knob of such a person as seems to be the case in the Skripal affair in Salisbury. The great thing about this weapon is it makes the luckless souls who have been contaminated, just disappear. LOL
So you believe in The Hague. Do you also believe in Santa?
Please see my comment above: the US would attack the Hague militarily. Any ideas may be useful.