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U.S. need not fear the ICC

by Alejandro M. Garro and Cesar Chelala

NEW YORK — In recent years regional courts have been set up in Europe and the Americas to deal with the most serious human rights abuses committed by governments. International “ad hoc” criminal tribunals have been set up to deal with atrocities and massive killings committed in the former Yugoslavia, Rwanda and other places. A number of international treaties now seek to ensure that torturers do not escape responsibility for the worst of these abuses. The United States should not only welcome but also positively contribute to these international legal developments.

Ninety countries have now set up a permanent International Criminal Court. The job of the ICC is to be complemented by national courts that, under the rubric of “universal jurisdiction,” have become increasingly vocal in extraditing, seeking to extradite, or expressing a willingness to try individuals who have committed the worst human rights abuses, no matter where those atrocities took place.

The U.S. has refused to join the international human rights judicial system set up in the Americas. The Bush administration has also been engaged in a worldwide crusade against the ICC, pressuring member countries to the ICC into agreeing, under penalty of losing U.S. aid, not to cooperate with any ICC prosecution of American citizens.

There is more than one reason why the U.S. has traditionally opposed, and why the current administration strongly complains about, this increasing trend toward transnational justice. This opposition persists regardless of whether the justice system is based on international treaties that the administration refuses to sign (such as the American Convention on Human Rights or the U.N. Convention Against Torture) or adhere to without crippling reservations, or derives from new scholarly trends in jurisprudence (such as the notion of “universal jurisdiction”).

The administration fears that under the doctrine of “universal jurisdiction” anti-American activists around the world may bring ill-founded and politically motivated prosecutions against high U.S. officials for human rights violations or crimes against humanity in connection with wars in which the U.S. has been involved. Fear that international prosecutions before the ICC may be brought against American soldiers may be another matter of concern, fearing that the U.S. may be outvoted once again in the U.N. Security Council.

There is no question that efforts toward establishing a reliable system of transnational justice entails some worrisome implications. But such has been the case of any area of law that still needs years or decades of consistent and accepted usage as well as more formal authoritative opinions before it matures. There are three steps to accepting a system of transnational justice:

* Dispelling prejudices and misunderstanding as to how novel the approach toward transnational justice is — and it is not so new. The idea that certain types of crimes and the offenders are subject to “universal jurisdiction” is as old as piracy and the slave trade. This type of crime not only offends the community or country where they are perpetrated but mankind as a whole.

Every state has a legitimate interest in bringing their perpetrators to justice, regardless of where those atrocities were committed and the official status of the alleged offender. Thus a person accused of committing a “crime against humanity” (genocide, massive summary executions, systematic torture and forced disappearances) is treated as an “enemy of all mankind.”

* Understanding that international prosecution cannot take place under the rubric of “universal jurisdiction” unless the national courts of the state where the crime was committed refuses or is unable to bring the perpetrators to justice.

This is the case with Spanish Judge Baltazar Garzon’s requests for extradition so that various Argentine military officers accused of gross human rights violations during the years of the “dirty war” can be tried. If the Supreme Court of Argentina affirms the decisions of lower federal courts that held the amnesty laws as unconstitutional and prosecutions start in Argentina, then the alleged perpetrators of crimes against humanity cannot and will not be extradited to Spain.

* Realizing that politically sensitive disputes are always likely to play a significant role in the prosecution of grave human rights abuses or crimes against humanity, but that this is not a sufficient reason to condone the impunity that torturers and powerful tyrants continue to enjoy in their home countries.

Fear of politically motivated prosecutions should not be used as an excuse to immunize torturers and tyrants of the future from international legal restraints, even if they happen to be top U.S. soldiers or government officials.