Tuesday, October 19, 2010

On universal jurisdiction

[When I read Mr Eyal's opinion piece I was thinking that it was a good editorial on the silliness of over-extended human rights group. Then 2 responses.]

Oct 19, 2010

Universal justice must start from a written code of rights

MR JONATHAN Eyal's commentary ('The absurdity of universal jurisdiction'; Oct 8) calls the notion 'a form of selective morality, promoted by self-appointed busybodies'. In reply, Ms Rejini Raman ('Universal jurisdiction: Why it's relevant'; last Thursday) contended that these rights are so fundamental, their violations ought to be prosecuted anywhere.

Behind the principle of universal jurisdiction is the idea of a universal standard of morality. One view - the natural law theory - states that laws are derived from higher principles, such as God. By contrast, moral realism argues that moral standards exist independently of religious beliefs. While both these views support the notion of a universal moral standard, a third, moral relativism, would not.

Moral relativism holds that a society's morals are derived from its own culture, which accounts for the different moral standards we find today.

Universal jurisdiction in this context would not be acceptable as it would involve prosecutors imposing their moral standards on others.

Notwithstanding these different schools of thought, universal jurisdiction can be acceptable everywhere only if there are written universal laws and a body with the power to apply them.
Furthermore, such laws should apply only in countries that choose to uphold them.

Examples of such universal laws include the Universal Declaration on Human Rights (UDHR), which in turn enables the International Criminal Court to prosecute crimes.

[The UDHR is not a law. It's just a declaration of ideals. You can't prosecute anyone based on that. If you can, then someone could charge the Malaysian government for infringe of freedom of thought and religion. The Declaration provides for freedom to change one's religion. M'sia does not allow muslims to convert.]

Universal jurisdiction in this context would apply to those countries that ratified the UDHR, and exclude those that did not. That would perhaps be the best way to address the different views regarding moral standards.

Sarah Liyana Yazid (Miss)

[This letter is just Sarah's way of propounding her understanding of moral relativism. It provides an incorrect example of "international law" and proposes an irrelevant and impractical solution to a problem she doesn't quite understand.]

Oct 14, 2010

Why it's relevant

MR JONATHAN Eyal thinks that universal jurisdiction is a flimsy excuse for 'self-appointed busybodies' to embarrass governments ('The absurdity of universal jurisdiction'; last Friday).
They do this, he argues, by filing frivolous lawsuits against heads of state and top government officials, accusing them of human rights abuses.

[Actually, the embarassment is to the host government, not the "criminal" heads of state/government. The embarassment then makes the legal process an absurdity.]

He prefers such matters to be dealt with by the International Criminal Court or special tribunals set up for war crimes.

Universal jurisdiction is a principle which stems from the belief that some crimes are heinous enough to be prosecuted anywhere regardless of where the crimes were committed.

These crimes include genocide, torture and enforced disappearances. Supporters of universal jurisdiction say the doctrine was at an embryonic stage during the Nuremberg Trials of 1945 to 1949, but has developed into what it is today to allow national courts to prosecute certain crimes no matter where they were committed, dispensing with a need for a special tribunal such as the one in Nuremberg.

Human rights activists are aware that corrupt governments are propped up by private investment.

[Corrupt governments are propped up by many things, usually the exploited natural resources of their country. Private investments are drawn to such resources, and are forced to deal with corrupt governments in order to access the scarce resources. Some of the worst places in the world are cursed by rare and valuable natural resources like gold, diamonds, and oil.]

It is also true that regimes in some developing countries regularly commit atrocious crimes against their own citizens to quell dissent.

Yet, to prize economic relationships at the cost of basic human rights, such as the right to life or the right to live free from torture, is unconscionable.

[That is a misreading of Eyal's opinion. Eyal's point is that such stunts do nothing to resolve issues, save lives, prevent torture, or achieve anything other than to embarrass legitimate governments trying to engage delinquent governments or heads of state. There are good reasons to extend diplomatic immunity to Heads of state/government. Undermining such principles serves only to erect barriers and defences, driving the offender into isolation and distrust. Such "prosecutions" are ill-advised and past attempts have shown them to be without basis in law.]

It is this unease which drives human- rights activists. While governments and private entities scurry to secure deals and boost economic growth, there should be some voices to caution against ignoring fundamental human rights.

Staying quiet so as not to upset a potential business partner is not an option.

[Raising an ineffectual legal gambit with embarrassing consequences, and zero effect is an option?]

Business activity is important. We need it to create jobs, sustain livelihoods and drive growth. But to forget human rights in order to secure lucrative contracts would be a grave mistake. Universal jurisdiction serves as a caution to heads of state and government officials that they do not rule with impunity.

Universal jurisdiction, far from being an embarrassing principle, is vital and necessary today.

[And what has universal jurisdiction achieved beyond the initial success against WWII war criminals? The logistical and administrative problems of universal jurisdiction are many. Who are the witnesses, how will the accused defend himself, what are the ramifications of a head of state being charged convicted and sentenced by a foreign court? Which is why the various courts and countries which used to subscribe to the ideal of universal jurisdiction are rolling back their support of this principle.

Eyal is not quite right. Those who pursue such legal avenues are not necessarily busy bodies. They may well be empowered victims seeking justice. But they are misinformed and misguided idealists to think that this legal myth can secure them justice.]

Rejini Raman (Ms)

Oct 8, 2010
The absurdity of universal jurisdiction
It allows rights activists in Europe to make a travesty of international law

By Jonathan Eyal, Europe Correspondent

INDONESIAN President Susilo Bambang Yudhoyono's decision to postpone a scheduled visit to the Netherlands earlier this week because of a criminal charge against him in a Dutch court has taken legal experts by surprise.

For it was always clear that, as head of state, the Indonesian President enjoys absolute immunity. A Dutch judge confirmed this on Wednesday, by throwing out the case against Dr Yudhoyono.

Still, the episode was a reminder of the political difficulties and diplomatic embarrassment some Western governments face due to the spread of a fairly new legal concept: 'universal jurisdiction'.
The doctrine of universal jurisdiction claims that certain crimes can be prosecuted in any country regardless of where the crimes were committed or the alleged criminal's nationality. This doctrine clearly strains established norms. But, as some lawyers and human rights groups claim, people accused of genocide, mass murder or torture should never escape justice.

Advocates of the doctrine point to a 1960 case where Israeli secret agents kidnapped Adolph Eichmann, one of the architects of the Holocaust. Eichmann, then a resident of Argentina, was instrumental in the murder of millions of Jews, none of whom were Israeli citizens if only because Israel did not exist during World War II. Nevertheless, an Israeli court found him guilty of genocide, and he was executed. That, supporters of universal jurisdiction claim, is their model.
Belgium was one of the first nations to grant its courts universal jurisdiction over war crimes, back in 1993. But instead of justice, judicial chaos was Belgium's sole reward.

Hundreds of complaints poured in. Former Israeli prime minister Ariel Sharon was sued for his alleged role in the massacre of Palestinians. In turn, Israelis sued then Palestinian leader Yasser Arafat. Meanwhile, various Iraqis took former US president George H. W. Bush to court for bombing Baghdad; soon enough, seemingly every former or serving world leader was facing a lawsuit in Belgium.

In Spain, local judge Baltasar Garzon decided to prosecute some ex-Latin American officials, while his other colleagues launched a criminal case against former Chinese president Jiang Zemin.

It was Mr Garzon who unleashed one of the most celebrated cases, by demanding the arrest of former Chilean president Augusto Pinochet, when he happened to visit Britain in 1998.
The British authorities had no choice but to act on the arrest warrant. General Pinochet was ultimately released, but not before a serious legal precedent was established.

British courts ruled that Gen Pinochet's diplomatic passport gave him no immunity, because he was not on government business. The implication of this ruling was grave: the only way a former international leader could be guaranteed immunity against arrest was to refrain from travelling to Europe altogether.

The absurdity of the situation forced European governments to act. Belgium put an end to its legal circus by repealing its legislation. And Spain, which did the same, also publicly rebuked its own wayward investigative magistrates.

Still, intrepid human rights activists found ways around these restrictions.

Last December, lawyers in London used a loophole in British law which allows individuals to start private prosecutions in order to obtain an arrest warrant against Mrs Tzipi Livni, the leader of the Israeli opposition. The warrant was cancelled only when Mrs Livni failed to travel to London.

Meanwhile, Moluccan independence activists have filed at least seven different lawsuits against top Indonesian officials before the Dutch courts.

Britain plans to insert a clause which will require the Attorney-General to agree to any private prosecution. And Dutch courts are taking a stricter line against frivolous lawsuits.

Nevertheless, the damage done by such episodes remains considerable. By insisting on universal jurisdiction, human rights activists often bring all international law into disrepute, precisely the opposite to their professed intention. And, by launching criminal cases, they hinder normal diplomatic activity, thereby making the handling of international conflicts more difficult.

There are many bodies - such as the International Criminal Court, or the special tribunals for Rwanda - set up to try alleged war criminals. Today's version of universal jurisdiction claims to be a progressive legal concept, but is in fact just a form of selective morality, promoted by self-appointed busybodies.

So, although President Yudhoyono may have over-reacted by cancelling his visit, he did Europe a favour by reminding governments of the long-term damage from such legal excesses.


Sarah said...


I'm Sarah, the writer of the first letter you mentioned. I apologise for the mistake you pointed out; I believe it was purely a Straits Times editing error.

My original letter stated the following:

"Does a universal standard of morality exist? It may be the case. However, as a matter of principle, no matter which school of thought you subscribe to, I would think that at the very least these principles ought to be codified into a coherent written form. ...

Coherent written forms do exist; examples include the Universal Declaration on Human Rights (UDHR)."

I hope that clarifies matters. Should you want a copy of my original letter, please let me know by replying to this comment.

Thank you. Impressed with your blog, by the way.

El Lobo Loco said...

Dear Sarah,
Thank you for your clarification. It would seem that your position was misrepresented by the editing. And if I was misled by that I apologise.

I thought Eyal's point was a good one: that states have to deal with each other at a diplomatic level, and this means diplomatic niceties trumps moral idealism.

It is naive to think that a ruling head of state/govt can be charged in a criminal court, let alone be convicted and sentenced. If an European court had done that to SBY, how would Indonesia react to this insult?