A news item caught my attention last week. With domestic tribulations facing us, it is sometimes easy to let go of events in other parts of the world. My devotion to human rights amplified my interest in this story.
Germany put on trial, convicted, and sentenced to life in prison a Syrian intelligence officer, Anwar Raslan. He was charged with committing crimes against humanity, among the most egregious human rights violations. Crimes against humanity are understood in international law to encompass mass atrocities such as murder, torture, rape, and forced expulsion that target civilians.
Syria has experienced an 11-year civil war characterized by exceptional cruelty. The regime of president Bashir al-Assad has caused the displacement of half the population of 22 million from their homes, six million of whom have fled the country. Upward of half a million have been killed. The regime has murdered its own people with chemical weapons. Cities have been bombed to rubble. Assad presides over a network of torture prisons in which it's estimated that 15,000 men, women and children have been tortured to death. Raslan was integral to that process.
What is unusual about this trial in the annals of justice is that Anwar Raslan is not German. His crimes were not perpetrated against Germany, nor did they take place on German soil. Rather, Aslan oversaw the torture, murder, rape, and other sexual abuse of Syrian citizens in Syria. His trial was held under a provision of international law known as “universal jurisdiction.”
Universal jurisdiction is the doctrine that some crimes – genocide, crimes against humanity, torture, and several others – are of such magnitude, so morally shocking that they constitute an assault on humanity that has universal reach, and as such their perpetrators can be tried in any competent court anywhere.
Though primarily an outgrowth of the growing recognition of human rights since the Second World War, universal jurisdiction is not a new idea. Some trace it back to the early 19th century and the judicial treatment of pirates and those involved in the slave trade. It responded to the problem of how to bring to justice criminals who were captured on the high seas and therefore beyond the jurisdiction of any one nation.
The doctrine evolved through the creation of the Hague and Geneva accords, so-called humanitarian law, that established the laws of war. But the major judicial event that launched universal jurisdiction into greater employment were the Nuremberg Trials of 1946. Almost 200 Nazis were put on trial, including 24 senior figures in the International Military Tribunal, the initial and most noteworthy hearings.
Nuremberg dramatically qualified the doctrine of national sovereignty and elevated the profile and empowerment of international law. Evoking the doctrine of national sovereignty, the Nazis defended their innocence on the grounds that they were faithfully carrying out the laws of the German state. The Nuremberg convictions asserted that international criminal law superseded German laws and therefore limited the scope of national sovereignty. The Nazis were condemned for the crime of aggression. But they were also found guilty of perpetrating crimes against humanity and genocide in which the victims are religious, ethnic, or cultural minorities. Nuremberg established the principle that there should be no national protections or impunity for such monstrous crimes.
The Nuremberg Trials helped to propel the idea of international human rights, which found its guiding expression in the Universal Declaration of Human Rights adopted by the United Nations two years later. The human rights idea asserts that the fundamental rights of all people anywhere is the concern of all people everywhere, in ways that partially transcend national sovereignty.
After Nuremberg, international criminal law experienced a slow development, as did the employment of universal jurisdiction. The creation by the United Nations of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda in the 1990s, which were established to try the perpetrators of genocide in those countries, have elements that overlap with universal jurisdiction. They are universal in character. Established by the Security Council of the United Nations, the trial regarding the former Yugoslavia takes place in The Hague, in the Netherlands, and the Rwandan Trial is held in the city of Arusha in Tanzania.
For judicial activists, the founding of the International Criminal Court, which was created by the Treaty of Rome in 1998, and came into force in 2002, is seen as the fulfillment of Nuremberg. Despite its problems and growing pains, humanity now has a free-standing International Court that works to ensure that those who commit the worst crimes will not enjoy impunity, which too frequently has been the fate of too many tyrants and mass murderers.
Where does universal jurisdiction, as it is unfolding in Germany, fit into this picture of international criminal justice?
We need to look at the larger context. International law is a legitimate body of law, but it differs from law as we usually understand it. In the first instance, international law is not legislated. There are probably close to 600 international laws, sometimes referred to as the “law between nations” relating to such issues as peace, defense, trade, territorial boundaries, use of the sea, law enforcement, and many others. The international law of human rights is among them. International law, as noted, is not created by legislatures. It is created by treaties between and among the nations.
A second difference from national or local laws is that there is no clearly identified executive body, no international police agency, to enforce international law. Its enforcement rests primarily on the reciprocal self-interest of the parties that ratify the treaties at issue.
Of engaging interest, in my view, is that since Nuremberg, mechanisms for the enforcement of international human rights law are slowly, haltingly, emerging. They are piecemeal and inchoate. But as the world becomes smaller, more interdependent, and more globalized, additional approaches are being put into place in the attempt to enforce the international law of human rights.
The special tribunals, just mentioned, set up by the United Nations and the International Criminal Court, are among them. The United Nations has several agencies to oversee the compliance of nations with their human rights commitments. The UN maintains a High Commissioner for Human Rights as watchdog and spokesperson for human rights, who can use the tools of both education and global embarrassment to shine a light on problems and offending nations. When mass violence, genocide, or other atrocities are brewing or breaking out, the Security Council, as a last resort under international law, can raise a peace-keeping force to try to restore order.
Human rights has increasingly become a mainstay of international discourse and diplomacy. No nation wishes to be exposed as a violator of human rights. When nations, such as the United States, seek to influence the human rights performance of other countries, it can unilaterally attempt to do so through negotiations, or more aggressively, via economic sanctions.
And then there is the human rights community. There are thousands of human rights organizations around the world, mostly comprised of committed volunteers. Many are religious and many secular. Some are large, such as Amnesty International with its millions of members, some are small such as my Northern New Jersey Sanctuary Coalition, which exists to support asylum seekers. Yet each in its way is committed to pressuring nations to abide by their commitments to safeguard human rights.
Universal jurisdiction finds its place in this patchwork and diverse mosaic. The developing consensus, as noted, allows nations to use their courts to try perpetrators of the worst crimes, even if those charged are not nationals of that country and the crime took place elsewhere.
The empowerment of states to conduct such trials has to be factored into its own laws, and a few nations have such provisions. Among them are Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Israel, Mexico, Netherlands, Senegal, Spain, Switzerland, the United Kingdom, and the United States. German law more readily than most allows for its courts to exercise universal jurisdiction.
How has universal jurisdiction been employed? Perhaps the most famous example was the trial of Adolf Eichmann, a major architect of the Nazi Final Solution who was tried in Israel in 1961.
There have been other high-profile cases. Among the most famous in more recent times involved the fate of Augusto Pinochet, the former dictator of Chile who was arrested on a visit to Britain at the request of a Spanish judge, petitioning that he be remanded to Spain to stand trial. I quote from a Human Rights Watch summary of the case:
“On the night of October 16, 1998, London police arrested Gen. Augusto Pinochet. They were acting on a Spanish warrant charging the former dictator with human rights crimes committed in Chile during his seventeen-year rule. The British courts rejected Pinochet's claim that he was entitled to immunity and ruled that he could be extradited to Spain to stand trial.”
“In 1996, lawyers acting on behalf of victims of military repression in Argentina and Chile who were unable to pursue their claims at home filed criminal complaints in Spain against the former military leaders of those countries, including General Pinochet. Although most of the crimes were committed in Argentina and Chile, Spanish courts allowed the cases to proceed in Spain, using the principle of "universal jurisdiction" over human rights atrocities that is firmly enshrined in Spanish legislation and international law though rarely invoked.”
“In October 1998, Pinochet traveled to Britain. On October 16, the judge investigating one of the Spanish cases, Baltasar Garzón, requested the British authorities to arrest the former dictator. He was arrested that night in London. Spain later formally sought Pinochet´s extradition, as did Belgium, France, and Switzerland. Pinochet challenged his arrest on the ground that he enjoyed immunity from arrest and extradition as a former head of state. The House of Lords, Britain's highest court, twice rejected Pinochet's claim of immunity. In its first judgment, later annulled, the Lords ruled that although a former head of state enjoys immunity for acts committed in his functions as head of state, international crimes such as torture and crimes against humanity were not "functions" of a head of state. In the second, more limited, judgment, the Lords held that once Britain and Chile had ratified the United Nations Convention against Torture, Pinochet could not claim immunity for torture. A British magistrate then determined that Pinochet could be extradited to Spain on charges of torture and conspiracy to commit torture. In March 2000, however, after medical tests were said to reveal that Pinochet no longer had the mental capacity to stand trial, he was released and he returned home to Chile.”
Though Pinochet was too ill to stand trial, this episode, famous in the annals of human rights, raised the profile of universal jurisdiction.
What about the United States? Universal Jurisdiction has been applied in the US through the Alien Tort Statute that was passed in 1789. It is among the oldest US laws and allows foreign nationals to sue for civil damages in American courts for violations of international laws committed in foreign countries. The law, for the most part, was dormant until 1980 when it was revived and applied to human rights violations. The landmark case involved the torture and death of a Paraguayan that took place in that country.
Joelito Filartiga was a young Paraguayan activist who was tortured to death by the regime of Paraguay's long-standing dictator, Alfredo Stroessner, Filartiga's torturer emigrated to the United States and was working here illegally. One day, he was spotted on a New York City street by two of Joelito's relatives, who had him arrested. The case was defended by the Center for Constitutional Rights in New York, After an initial reversal, Filartiga's relatives found justice in a Brooklyn courtroom, under the Alien Tort Statute and US human rights treaty commitments, for crimes committed in Paraguay. Since the Filartiga case, its precedent has been used by others, though more recently the US Supreme Court has narrowed the scope of the Alien Tort Statute.
Another incident, which did not end successfully, was an effort during President George W. Bush's War on Terror, also brought by the Center for Constitutional Rights and led by its radical director, Michael Ratner. The initiative planned to have Germany arrest and try American Secretary of Defense, Donald Rumsfeld, on behalf of 12 Iraqis who were tortured at Abu Ghraib prison and one Saudi whose torture could be directly traced to Rumsfeld. Rumsfeld had authored notorious memos authorizing the use of torture. Although the initiative received much German support, not surprisingly a German prosecutor dismissed the case.
These cases point to a larger reality concerning the protection and enforcement of human rights in general, of which the application of universal jurisdiction is a salient example. Human rights reflect an ideal standard defining how nations need to treat their citizens. It places the preservation and protection of human dignity at its center. Human rights may be encoded in international law, but it also remains a program of important ideals and aspirations. I tell my students that human rights, despite their idealistic nature do not float above the political fray. Rather they, like all else, are employed and corrupted as political tools. They inevitably are part of the political mix.
It is a marvelous advance that the world now has human rights standards by which the behavior of nations can be, and often is, measured. But it is a standard that is perpetually corrupted by political interests. The United States can chastise for their human rights abuses weaker countries that bear no strategic interest to us. But we are eager to trade with Saudi Arabia and China, nations that have little or no regard for human rights. During the Cold War, we condemned the Soviet Union for its lack of political freedoms while supporting the cruelest dictators as long as they were anti-communist.
Universal jurisdiction, which proffers that there should be no escape for the perpetration of the worst crimes, is a noble and enlightened idea. But its glaring vulnerability is that who are tried and where cannot escape political interests that can readily corrupt our aspirations for disinterested justice. The powerful nations can readily try and punish the malefactors of the weaker nations. But it is hard to foresee the day when the weaker countries will put on trial those who commit crimes as agents of the rich and powerful nations.
The world slowly is moving toward ways of enforcing universal human rights laws that speak to the best in human nature. The results, as noted, are readily tainted by political interests.
The measured success of the enforcement of human rights cannot be an ideal one. If we make it such, we will inevitably be disappointed. We may even turn cynical. We should not allow that to happen. The question we need to ask is not “Will we achieve perfect justice?” Rather, more realistically, and therefore more wisely, the question we must ask is “Is some justice, however imperfect, better than no justice at all?” Stubborn improvement, not perfection, must be our goal.
When people stand up for morality(ethical principles), the world is a better place And as you note sometimes justice is not perfect. Excellent article that recognizes political reality without the cynicism that you rightfully deplore.
Excellent article, Joe, and most timely.