The
U.S. is being pressed
by events on
international human rights law
 f
By
Jonathan
Power
TFF Associate
since 1991
Comments to JonatPower@aol.com
January 13, 2005
LONDON - Over the last six years
the strengthening of international criminal law and the
increase in the prosecution of crimes against humanity
appear to have been swept along on a flood tide. Now in
2005 its waters appear to be surging even more strongly
as ex-president Augusto Pinochet of Chile, the Congolese
and Ugandan rebels and elements of the Sudanese
government all look likely to be recommended for
prosecution and trial.
"An unprecedented movement has
emerged to submit international politics to judicial
procedures [and] has spread with extraordinary
speed", Henry Kissinger has observed in a tone both
despairing and disparaging. The East Timorese Nobel prize
winner José Ramos-Horta is rather more welcoming,
saying, "In this day and age you cannot kill hundreds of
people, destroy a whole country, and then just get
fired."
In about two weeks' time a UN
commission of enquiry will report on alleged genocide in
Sudan's Darfur region. It is expected to refer the
results- damning ones- to the UN Security Council which
must then decide whether or not to recommend prosecution
by the recently formed, but American opposed,
International Criminal Court.
A recent report on means of
strengthening the UN written by a group of eminent
personages, including former U.S. National Security
Advisor Brent Scowcroft, has advised, "The Security
Council should stand ready to refer cases to the
ICC."
This could become an explosive
issue within the Bush Administration. There is even
pressure coming from its right to be on the side of
international justice in the Sudan- American
fundamentalist groups which have been deeply involved in
the Sudan appear to be lobbying for prosecution. It is a
possibility that the U.S. could abstain on the issue
leaving the way open for a majority on the Security
Council to push the matter forward.
Even inside American jurisprudence
opinion is changing in a quite radical way. Just before
Christmas, Unocal, the giant oil company, announced that
it had settled an action brought against it by Burmese
villagers under the Alien Tort Claims Act that, although
a 1789 law, has had new life breathed into it by a recent
Supreme Court decision upholding its validity. Unocal was
being prosecuted for colluding in human rights abuses in
Burma.
The Supreme Court also in December
announced that it was prepared to hear a case that
concerns an order from the International Court of Justice
(the so-called World Court that deals with disputes
between nations) for U.S. courts to review a death
penalty case involving a Mexican. This is very different
from its attitude a mere seven years ago when it snubbed
its nose at a World Court order on a similar
case.
The U.S.- along with Russia, China
and India- may be opposed to the International Criminal
Court, but they are going to find it harder and harder to
stand back as the number of prosecutions of the fledgling
ICC mount.
By the fall it is likely that the
cases that have been referred to it by the governments of
Uganda and the Democratic Republic of the Congo involving
mass killings and sadistic acts by the rebel groups
operating in the north of Uganda and the east of the
Congo will be ready for indictments. And in these cases
there is nothing that the U.S. could do to stop them
going forward. Indeed, the Administration is going to be
pressed by human rights' lobbies and perhaps even by
powerful members of Congress to work to widen the
prosecutions to indict also the governments of the Congo
and Uganda. In fact the very legislation that was drawn
up to define the U.S. relationship to the International
Criminal Court has an unreported-on loophole that could
allow the Administration to support such prosecutions
since it doesn't involve U.S. nationals.
Meanwhile, it increasingly looks as
if justice is finally going to catch up with Chile's
Pinochet, the former military dictator and accused
torturer. Chile's courts will decide this one but the
case would never have advanced so far if Spanish
prosecutor Baltasar Garzón had not sought his
arrest in London and Britain's highest court, the House
of Lords, had not decided that under the UN's Convention
against Torture Pinochet did not have sovereign
immunity.
In international ad hoc courts
prosecutions continue against the war criminals of
ex-Yugoslavia Rwanda, Sierra Leone and East Timor, and in
Cambodia finally a court has been established to try the
war crimes of the Pol Pot era.
The rising tide of human rights
prosecutions in the courtroom raises the interesting
question about what the world community should do with
its next Saddam Hussein? What if instead of a decade of
sanctions and in the end a war the Security Council had
authorized an international prosecutor to investigate
Saddam's war crimes? Once an indictment had been handed
down an international or even a single national force
could have been authorized to seize the indicted
suspect.
Could it be that this flood tide
will carry us that far?
Copyright © 2005 By
JONATHAN POWER
I can be reached by
phone +44 7785 351172 and e-mail: JonatPower@aol.com
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"Like
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