Also in the Times today was an op-ed piece by David B. Rivkin Jr. and Lee A. Casey, two former Department of Justice lawyers from the Reagan and George H. W. Bush administrations. They were writing about a popular theme on the right: trashing universal jurisdiction for crimes against humanity. Their commentary displays a lack of knowledge of basic facts and an ignorance of history.
For example, they write:
By contrast to those named in the Belgian cases, the man whom Judge Garzón has jailed, Ricardo Miguel Cavallo, doubtless richly deserves prosecution. Mr. Cavallo is accused of kidnapping, torturing and murdering hundreds of people during the "dirty war" in Argentina from 1976 to 1983. Under Argentina's amnesty laws, however, Mr. Cavallo cannot be punished; he was extradited to Spain not by Argentina, but by Mexico, where he was living. Judge Garzón is essentially ignoring Argentina's own history and desires.
In Mr. Cavallo's case, Argentina did not fail. Rather, it made the difficult and distasteful choice to give immunity to many of the people who had terrorized the country during military rule. In return, Argentina made a peaceful return to civilian government and democracy, and avoided further military coups.
What they fail to mention is that the pardons of the commanders and the amnesty law came after three attempted coups, so while they may make the argument that it was a "choice," it was made via coercion, a concept apparently lost on these lawyers. Moreover, many of the victims were Spanish citizens and regardless of how one may feel about universal jurisdiction, surely Spain has the right to prosecute those who have murdered its citizens, even if they are abroad. If Saudi Arabia had granted amnesty to those responsible for the Khobar Towers bombings would Mr. Rivkin and Mr. Casey be so enamored of Saudi Arabia's soverignty that they would object to the prosecution of those responsible by the USA?
In the case of Pinochet, he had an amnesty granted as a decree while he was the supreme leader of the junta that led Chile. He also had the post of Senator for life created for himself and the parlimentary immunity that accompanied the position. How convenient of the writers to miss these facts. At least in Uruguay, there was a plebiscite on this question after the military was no longfer in power and its influence weakened.
Their argument also compares apples and oranges:
Universal jurisdiction does have a proper place in international law. It 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. In more recent years, however, universality has been asserted for an increasing number of human rights offenses, even though there is little 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.
To compare prosecutions for slavery and piracy with human rights abuses and claim that "there is little practice (in the form of actual prosecutions that are accepted as legal by the defendant's own country) to support these claims" is sophistry. First there is very little practice in universal jurisdiction for human rights law and all of it has taken place since World War II. Secondly, it begs the question of such laws as the Torture Victim Protection Act of 1991, signed into law by their ex-boss (George H. W. Bush). Even Chile ratified the Convention Against Torture when Pinochet was in power. Thirdly, it ignores the fact that the Pinochet prosecution was stopped not for judicial reasons, but for political reasons, when Jack Straw was "minded" to allow Pinochet's return to Chile for health reasons where he had a miraculous recovery on the tarmac in Santiago. If Pinochet's health had not been of concern, it was quite possible that he would have gone to Spain to face prosecution as the legal barriers to his extradition had fallen away.
In addition, when compared with criminal enforcement in national legal systems, international prosecutions are always second best. This is because all prosecutions are meant to accomplish at least two goals. The first is to punish the guilty. The second is to promote socially desirable results in the form of deterrence and an overall respect for the rule of law. In instances where the cases grow out of national traumas, such as civil war or repression, the reassurance of the citizenry, political reconciliation and a kind of national catharsis are also critical elements.
International prosecutions can achieve the first goal, punishing the guilty, but they are singularly ill-equipped to deliver on the others (a flaw shared by the International Criminal Court). 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, under the rubric of universal jurisdiction.
Two points brought up here bother me:
1.) It ignores the effect of deterrence.
2.) It implies a concept of reconciliation that I feel is coercive.
Regarding the first point, here is a quiz: What famous conservative commentator made the following comment in regard to Pinochet's arrest:
Some conservatives reasonably argue that prosecuting Pinochet might deter other dictators from surrendering power. However, those conservatives are conceding a deterrent effect: Such prosecutions might stay torturers' hands. If the peril in which Pinochet finds himself prevents electrodes from being attached to the genitals of political prisoners, Pinochet's hour of fear has served justice.
I'll give you the answer tomorrow, unless you want to hazard a guess in the comments.
Concerning the second point, reconciliation comes with accountability and acknowledgement. It also has to take the victims into account. With regard to the former, if a government stacks the deck under duress and provides no means for victims of crimes against humanity to seek justice, do the authors of this article demand that they accept the results and give up any attempt to seek justice? Concerning the latter statement and on a more opinionated and philosophical note, I do not believe that a third party can grant forgiveness to a criminal that has perpetrated acts of violence against me or my family and demand that I accept this forgiveness without any effort made to investigate the crime and assign responsibility. Do Messr's Rivkin and Casey believe that if their loved ones were tortured by Osama bin Laden in say, Iran that if Iran chose to grant amnesty to bin Laden that should be the end of it? I certainly don't think so.
Finally, the authors fail to mention the impact that the attempts to prosecute alleged perpetrators of human rights abuses such as Pinochet and Cavallo have had in their countries. Pinochet has had his parliamentary immunity stripped, and although he is not going to be prosecuted for his crimes, his impunity was publicly stripped away. The impact that this will have in the area of preventing subsequent impunity can only be good.
While they do make mention of President Kirchner's efforts in having the amnesty laws revoked, they mention it as if it occurred in a vacuum. It didn't. It has started because some brave prosecutors and judges such as Judge Garzón and Judge Juan Guzmán Tapia in Chile, who got Pinochet's immunity stripped refused to accept the status quo and turn a blind eye to crimes against humanity.