“Garzon and the Trouble with International Law”

Onetime VC contributor Eric Posner has a WSJ op-ed on the indictment of Judge Baltasar Garzón in Spain and what this episode should teach us about the efforts to assert universal jurisdiction over alleged atrocities that occurred within the sovereignty of other nations.  Here’s a taste:

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. 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. Whether an amnesty should be issued so that a transition can be made to democracy (as in Chile or as in Spain), or exceptions to some rules should be made for the sake of national security are not questions for a foreign judge.

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?

Posner also explains why creation of the International Criminal Court cannot cure the problems with efforts by national judges to declare universal jurisdiction over acts that occurred within other nations.  The ICC, Posner says, is an “inconsequential institution” that must make “inherently political” decisions about which cases to pursue, and which will be “squashed like a bug” if it ever goes after a powerful country.

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.

UPDATE: Kevin Jon Heller responds at Opinio Juris.