Some Thoughts on Eric Posner’s WSJ Editorial

Eric Posner has an editorial today in the Wall Street Journal today that uses the recent indictment of Judge Garzon in Spain as an opportunity to dust off the traditional far-right attack on the concept of universal jurisdiction and the existence of the ICC.  It’s a remarkably misleading editorial, one that deserves a thorough response.

Mr. Garzon wanted to prosecute Pinochet in Spain for atrocities committed during his reign in Chile, despite the fact that Pinochet was a former head of state and had been granted amnesty as part of a deal that paved the way to democracy in his home country.

Posner — here parroting Henry Kissinger’s famous 2001 essay — obviously knows very little about Chilean history.  Pinochet was not “granted” amnesty; he gave it to himself.  As the New York Times noted in 2006, “General Pinochet originally decreed the amnesty in April 1978, four and a half years after he seized power in the coup that overthrew an elected president, Salvador Allende.”  Nor did the amnesty “pave[] the way to democracy in his home country” — Pinochet’s military junta remained in power until 1990, twelve years after the amnesty was decreed.  That’s a long road.

But don’t take it from me that the 1978 amnesty did not “pave the way” to democracy.  Listen to Michele Bachelet, the former President of Chile who was tortured by Pinochet in the infamous Villa Grimaldi in the 1970s.  From the same New York Times article: “‘This government, like other democratic governments before it, maintains that the amnesty was an illegitimate decision in its origins and content, form and foundation,’ Ms. Bachelet’s chief of staff, Paulina Veloso, said in an interview at the presidential palace here. ‘Our conviction is that it should never have been applied at all, and certainly should never be used again.’”  I guess Posner understands democracy in Chile better than the governments that were democratically elected after Pinochet was forced from power.

In Belgium, complaints were famously lodged against Ariel Sharon in 2001 on account of his alleged involvement in massacres at Beirut refugee camps in 1982, and George H.W. Bush in 2003 for the bombing of a civilian air raid shelter during the first Gulf War. In the United Kingdom, an arrest warrant was recently issued against former Israeli foreign minister Tzipi Livni for her involvement in Israel’s recent intervention in Gaza. In Spain, investigations have been launched against Chinese, American and Israeli leaders.

This is the typical right-wing move: invoke the few questionable uses of universal jurisdiction — and many of them were indeed questionable — to indict the concept itself.  But of course many prosecutions based on universal jurisdiction are neither politically motivated nor questionable.  More on that below.

When [Pinochet] returned to Chile he received a hero’s welcome from his supporters.

From his supporters?  Wow, what a surprise.  What Posner conveniently fails to mention — no doubt because it undermines his narrative of Judge Garzon frustrating the will of ordinary Chileans — is the reception that Pinochet received from everyone else when he returned in March 2000.  Thousands marched through Santiago to protest his return.  Chile’s Foreign Minister called his hero’s welcome “a disgrace,” and the President-elect, Ricardo Lagos, said it damaged Chile’s international image.  In May, less than two months later, the Court of Appeals in Santiago lifted Pinochet’s parliamentary immunity (self-servingly enacted by Congress to commemorate Pinochet’s return) in the infamous 1973 Caravan of Death case.  In August, the Supreme Court affirmed that decision.  In December, a judge indicted Pinochet for his involvement in the Caravan of Death.  Things got complicated after that, but it is fair to say that Pinochet’s legal situation got worse and worse over the next six years, until his death cheated his victims out of their day in court, Milosevic-style.

It is no accident that Chilean courts did not take steps to hold Pinochet accountable for his crimes against the Chilean people until after Spain attempted to exercise universal jurisdiction over those crimes.  Posner implies that the Spanish prosecution was nothing more than Spain meddling in Chile’s internal affairs, but nothing could be further from the truth.  The lawyer behind the prosecution, Juan Garces, was Spanish, but he had written his dissertation at the Sorbonne on Chile’s economic and political system and was serving as one of Allende’s political advisors in Santiago when Pinochet deposed Allende in 1973.  Allende ordered Garces to leave the country so that someone would survive to “tell the story.”  When Garces and his colleagues first began to consider pursuing charges against Pinochet, they wanted to rely on Chilean courts.  They turned to Spain only when it became clear that there was no judicial will in Chile to strip Pinochet of the immunity he had granted himself.

The Spanish prosecution, of course, never materialized.  But that does not mean that the efforts of Garces and his colleagues were in vain.  On the contrary, as a 1999 profile of Garces in Human Rights Brief noted, “the impact that the Pinochet case had on the Chilean judicial system is striking.  In particular, the case has helped the Chilean judiciary gain a greater degree of autonomy…. Until now, there has not been a tremendous outcry against the political influences in Chile that have restricted the judiciary’s ability to deliver substantive justice.  Today, however, there is a growing base of international and Chilean support for revising the Chilean judicial system.”  In other words — and this is what Posner fails to understand — the international attention created by the efforts to prosecute Pinochet in Spain helped Chile develop the will to do the job itself.

All told, only a few dozen trials based on universal jurisdiction have taken place, mostly involving Rwandans and former Yugoslavs.

So those prosecutions were bad things?  Even though they were not politically motivated, not controversial, were of great assistance to the ICTY and ICTR, and played an important role in the fight against impunity in Rwanda and the former Yugoslavia?  I’m surprised Posner even mentioned these prosecutions, because they undermine his central thesis, which is that universal jurisdiction is an inherently bad idea.

Universal jurisdiction arose centuries ago to give states a means for fighting pirates. In recent years, idealistic lawyers have tried to convert it into an all-purpose instrument for promoting international justice.

By recent, Posner apparently means 1949.  After all, the Geneva Conventions require states — all of them, because the Conventions are universally ratified — to enact legislation that gives their domestic courts universal jurisdiction over grave breaches.  Universal jurisdiction also permitted Israel to prosecute Eichmann in 1961.  (Damn idealistic lawyers!)  And, of course, a variety of terrorism conventions rely on universal jurisdiction, such as those concerning aircraft hijacking and sabotage (1970 and 1971), crimes against internationally protected persons (1973), hostage taking (1979), theft of nuclear materials (1980), and crimes against maritime navigation (1988).

But supporters of this law turned a blind eye to the diverse and often incompatible notions of justice that exist across countries. Everyone can agree to condemn arbitrary detention, for example, but in practice people disagree about what the term means.

Terms like… torture?  Now we are getting to the real reason Posner opposes universal jurisdiction: it makes it more difficult for states like the US to ignore their international obligations.  The world thinks torture means what the Convention Against Torture says it means.  The US thinks it means whatever will allow the CIA to torture people.

When Mr. Garzon indicted Pinochet, riots erupted in Chile. No matter, thundered the champions of international law: Let justice be done though the heavens fall. But when Mr. Garzon turned his sights on his own country, the gates of justice slammed shut. Spain’s establishment was not willing to risk unraveling its own transition to democracy, and rightly so. But then on what grounds should Spanish courts pass judgment on Chile?

As for the riots, see above.  As for Posner’s supposedly rhetorical question, the answer isn’t what he thinks it is.  He thinks he is criticizing universal jurisdiction, but he has actually offered the most powerful defense of it — states don’t like to prosecute their own officials.  Spanish courts had grounds in 1998 to pass judgment on crimes committed by Pinochet because — thanks to Pinochet’s hand-tailored amnesty — Chilean courts couldn’t do it themselves.  And now that Spain’s government has decided it doesn’t want to expose its own bloody past to scrutiny, it behooves another state to do the job for them.

Posner’s claim about Garzon threatening to unravel Spain’s “transition to democracy” is equally misguided.  How, exactly, would Garzon’s investigation into crimes committed between 1936 and 1951 do that?  Even if the 1977 amnesty was originally necessary for Spain’s democratization — which is far from clear — Spain has been a democracy for more than 30 years.  I think it could survive a few prosecutions for Franco-era crimes, especially given that Garzon’s investigation comes at a time “when public debate in Spain has recently begun to challenge the unwritten ‘pact of forgetting’ through which the country agreed to overlook the crimes of the Civil War era,” as indicated by the 2007 enactment of “a Historical Memory Law to recognise and broaden the rights of those who suffered persecution or violence for political, ideological or religious reasons during the Civil War and the Franco dictatorship.”

The ICC’s small group of employees are supposed to pick and choose what to investigate among an infinite variety of international criminal activity all over the world. With limited resources, it must select only a few crimes for its attention. When domestic prosecutors make these choices, they rely on common values and must ultimately answer to the people. But because nothing like this exists at the global level, the ICC’s choices are inherently political.

Now we transition, for some unknown reason, to the ICC.  This is the typical far-right critique of the ICC, but it gets no better no matter how many times it is repeated.  Domestic prosecutors “rely on common values and ultimately answer to the people”?  I seem to recall the Alberto Gonzalez era, when being a Democrat meant that you would be disqualified from being hired by the DOJ or end up prosecuted for imaginary crimes.  (Sorry, Mr. Siegelman.)  And, of course, the ICC prosecutor not only has to answer to the Pre-Trial Chamber (which is more than willing to cut him off at the knees; congratulations, Mr. Abu Garda), he can be removed by the Assembly of States Parties, which is far more democratic than, say, the U.S. Senate.

It has so far launched a handful of investigations in weak African countries where terrible things have happened, and for its troubles is now regarded as a neocolonial institution. Yet if the ICC picks on a big country to show that this is not true it will be squashed like a bug.

I actually agree with the first criticism — but it’s not the ICC’s fault that it is rhetorically effective to accuse it of neocolonialism.  And, of course, suggestions that the ICC is powerless to prosecute nationals of big (read: Western) countries only facilitates that rhetoric.

Posner doesn’t bother to defend his claim that an ICC prosecution of a “big country” will cause it to be “squashed like a bug.”  Would Germany do that?  France?  The UK?  It’s doubtful.  What they would do, most likely, is prosecute their national themselves — serious prosecutions, not the kind that the U.S. reserves for its own war criminals.  And then, of course, the principle of complementarity would require the ICC to defer to them — which is exactly the point of complementarity.

One cannot solve the perennial problem of “who will guard the guardians” by handing over authority to prosecutors and courts. But that is what the universal jurisdiction agenda boils down to. Mr. Garzon’s comeuppance should be a warning to those who place their faith in the ICC to right the world’s wrongs.

I’m not exactly sure why Garzon’s “comeuppance” concerning universal jurisdiction should be a “warning” to a court that does not rely on universal jurisdiction.  I guess Posner’s point is that just as Spain has no business prosecuting other states’ crimes, the ICC doesn’t either.  In other words, unless a state prosecutes its own officials for committing crimes against its own citizens, nothing should be done.  Other states should just sit idly by, shrug their shoulders, and give pretty speeches about how the offending state should do better.

It’s as if the past 60 years simply didn’t exist.