Global Policy Forum

By Alejandro M. Garro and César Chelala *

Transnational justice is rapidly gaining a foothold in a community of nations that has become increasingly interdependent. As international tribunals and national courts hearing disputes beyond their countries' borders become more common, they encounter firm opposition from the United States. Rather than opposing this trend, however, the United States should contribute positively to these legal developments. Regional courts have been established in Europe and the Americas to deal with the most serious human rights abuses, such as the U.N. Tribunal in the Netherlands, which is prosecuting Slobodan Milosevic for war crimes during the Bosnian conflict. (Retired U.S. Gen. Wesley Clark testified last month at Milosevic's trial.) Yet, the United States has refused to recognize the Inter- American Court of Human Rights, before which most other governments from the Americas are accountable for human-rights violations. The Bush administration also opposes the International Criminal Court, pressuring its member states into agreeing not to cooperate with the prosecution of American citizens. The job of international tribunals is meant to complement that of national courts. In Western Europe, some courts have resorted to the doctrine of "universal jurisdiction" to seek the extradition of former officials from other states for serious human rights abuses that went unpunished in their home countries. Recognizing this principle, Mexico's Supreme Court in 2003 extradited a former Argentine Navy officer to Spain. U.S. courts have also exercised the jurisdictional authority granted to them under an 18th-century statute to redress civil wrongs committed in violation of international law, even if carried out on foreign soil. Thus, a federal judge in Washington last July ordered Iraq to pay nearly $1 billion to American soldiers tortured in the Persian Gulf War.

The Bush administration fears that anti-American activists around the world may invoke such "universal jurisdiction" to bring ill-founded and politically motivated prosecutions against high U.S. officials for alleged crimes against humanity. Another concern is that international prosecutions before the ICC may be brought against American soldiers or government officials to suit the foreign policy agenda of "rogue" countries. Administration officials also worry that such cases may be brought by an unaccountable prosecutor with the consent of the U.N. Security Council. These concerns are not justified. Establishing a reliable system of transnational justice entails complex issues and runs serious risks. But such has been the case of any other area of the law yet to mature through consistent and authoritative judgments, especially if the law intends to weaken the impunity traditionally enjoyed by the most powerful. It is crucial to dispel prejudices and misunderstandings as to how this not-so-new system of transnational justice is meant to work. The idea that certain types of crimes and offenders are subject to "universal jurisdiction" is as old as piracy and the slave trade. These crimes offend not only the community or country where they were perpetrated, but mankind as a whole. A person accused of committing such specifically defined "crimes against humanity" (e.g., genocide, summary executions, systematic torture and forced disappearances) should thus be treated as an "enemy of all mankind," amenable either to prosecution or extradition. No international prosecution can take place unless the courts of the state where the crime was committed refuse or prove unable to bring the perpetrators to justice. In the case of Spanish judge Baltazar Garzón's extradition request in 2003 to try various Argentine military officers accused of gross human-rights violations, they will not be extradited if the Supreme Court of Argentina were to affirm federal lower courts' decisions holding present amnesty laws unconstitutional and in violation of international law. The prosecution of systematic and state-sponsored human rights abuses and crimes against humanity always raises politically sensitive issues. This is not a plausible reason to perpetuate the impunity that torturers continue to enjoy in their home countries. U.S. fears of politically motivated prosecutions should not be used as an excuse to immunize powerful torturers and those who commit gross human rights violations from international legal restraints.

About the Authors: Alejandro M. Garro, an Argentine attorney, is a professor of Latin American law at Columbia University. César Chelala writes on foreign affairs and human rights issues

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