Long-Range Justice Raises Fears for Sovereignty

By Barbara Crossette, The New York Times, 1 July 2001

From Augusto Pinochet to Slobodan Milosevic, the arm of the law is growing longer and the world smaller for national leaders and others accused of atrocities.

What is dawning, human rights lawyers say, is an age of justice without borders and not everyone is happy about it.

The trend, while celebrated by human rights advocates, is being viewed by some lawyers and governments as an alarming challenge to national sovereignty and a potentially unpredictable political tool.

The case of Mr. Milosevic, the former Serbian leader who was handed over to an international tribunal this week, more than any other demonstrates that even the highest government officials are vulnerable to international prosecution for the most heinous human rights crimes, said Kenneth Roth, the executive director of Human Rights Watch.

It's a momentous occasion for Milosevic's victims, who might see a modicum of justice done, said Mr. Roth, whose organization strongly supports what is called universal jurisdiction for human rights offenses. But it's also an historic moment for the human rights movement, he added, because it will begin to force would-be tyrants to think twice before replicating Milosevic's atrocities.

Some fear, however, that such a trend could have a paralyzing effect on government decision-making and warn that there are no guarantees that such prosecutions which are hopscotching borders in roundabout ways will be even-handed, indicting the friends as well as the foes of great powers.

Nonetheless, there is a trend whether justice is pursued by international tribunals, under national laws or by states and prosecutors claiming that some crimes are so awful that the accused should have no place to hide.

There was Manuel Noriega, the dictator of Panama who was seized by the United States in 1989, and convicted in 1992 of drug trafficking. There is Augusto Pinochet, the former Chilean strongman, who spent a year and a half in British custody on a Spanish warrant before being allowed to return home, where his legal problems continue. Hissan Habre, the former ruler of Chad, was under arrest in Senegal until a new government turned him loose last year, but his fate remains uncertain. Jean Kambanda, a former Rwandan prime minister, went to jail for life last year for his role in his country's 1994 genocide, mostly of ethnic Tutsi.

Others may have their days in court. Peru is demanding extradition from Japan of its former president, Alberto K. Fujimori. A Belgian prosecutor is trying to open proceedings against Saddam Hussein of Iraq, whose case is also being studied by American officials.

Foday Sankoh, though not a head of state, will almost certainly face proceedings in Sierra Leone for leading a particularly vicious rebel army against a government in which he was a minister.

At the Yale Law School, Ruth Wedgwood, a professor of international law, said the idea of universal jurisdiction first arose in 1919, in an abortive attempt to put Kaiser Wilhelm on trial for World War I. The U.S. was quite reluctant, Ms. Wedgwood said, in part because of the fuzziness of one of the charges, crimes against the principles of humanity, the predecessor to crimes against humanity. It's funny what a difference time makes, she said.

After World War II, the Nuremberg trials of Nazi officials were the century's high point in the use of universal jurisdiction for war crimes. But after that, this kind of law became a narrow specialist field, Ms. Wedgwood said.

Now, she calls it a growth industry, revived in recent years with the establishment of war crimes tribunals for the Balkans and Rwanda, and with the impending opening of the International Criminal Court, perhaps within the next two years.

That court will be the first permanent body charged with trying individuals for war crimes, crimes against humanity and genocide. The United States remains a reluctant nation, and has opposed setting up a permanent international criminal court, in part over fears that it could someday be used to prosecute its own soldiers or leaders.

William Pace, convenor of the Coalition for an International Criminal Court, said that the speed the movement for universal jurisdiction has picked up in a decade is remarkable.

Between 1989 and 1995, he said, virtually every international affairs expert promised us that there would never be a statute to create an International Criminal Court, that it would take another 30, 50, 100 years.

Equally, we have been told over the years that never will we see Milosevic transferred to The Hague, he added. One of the messages here is that patience works. The era of impunity is being replaced by a new era of international law and justice.

Hans Corell, the United Nations' legal counsel and a central figure in drawing up plans for international tribunals, said the establishment of the International Criminal Court will strengthen the hands of those who want to bring an errant leader to trial. From now on, people know in advance that there is a court to which criminals can be taken, he said.

But other legal scholars are disturbed by threats aimed at Yugoslavia by rich nations, especially the United States, that money to rebuild the country would be withheld until Mr. Milosevic was turned over.

And Henry A. Kissinger, writing in the current issue of Foreign Affairs, warns against what he sees as a dangerous mix of law and politics in what he acknowledges has become a growing movement for universal jurisdiction over the last decade.

Mr. Kissinger, whom some strident critics want to see face trial for his policies in Cambodia during the Vietnam War, writes that a universal system must not allow legal principles to be used as weapons to settle political scores.

He sees a possible chilling effect on makers of foreign policy, who would have to weigh whether they could be prosecuted for acting on behalf of what they see as their nation's interests.

Mr. Kissinger himself was recently haunted by American involvement in Chile when he was secretary of state almost 30 years ago, as a Paris judge tried to summon him to answer questions in the Pinochet prosecution.